IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - - - AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M UNION, et al : Plaintiffs : : v. : Philadelphia, Pennsylvania : March 22, 1996 JANET RENO, in her official : capacity as ATTORNEY GENERAL : OF THE UNITED STATES, : Defendant : . . . . . . . . . . . . . . . . HEARING BEFORE: THE HONORABLE DOLORES K. SLOVITER, CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT THE HONORABLE RONALD L. BUCKWALTER THE HONORABLE STEWART DALZELL UNITED STATES DISTRICT JUDGES - - - APPEARANCES: For the Plaintiffs: CHRISTOPHER A. HANSEN, ESQUIRE MARJORIE HEINS, ESQUIRE ANN BEESON, ESQUIRE American Civil Liberties Union 132 West 43rd Street New York, NY 10036 -and- STEFAN PRESSER, ESQUIRE American Civil Liberties Union 123 S. 9th Street, Suite 701 Philadelphia, PA 19107 -and- For the ALA BRUCE J. ENNIS, JR., ESQUIRE Plaintiffs: ANN M. KAPPLER, ESQUIRE JOHN B. MORRIS, JR., ESQUIRE Jenner and Block 601 13th Street, N.W. Washington, DC 20005 - - - 2 APPEARANCES: (Continued) For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE PATRICIA RUSSOTTO, ESQUIRE JASON R. BARON, ESQUIRE THEODORE C. HIRT Department of Justice 901 E. Street, N.W. Washington, DC 20530 -and- MARK KMETZ, ESQUIRE U.S. Attorney's Office 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 - - - Also Present: MICHAEL KUNZ Clerk of the Court for the Eastern District of Pennsylvania - - - Deputy Clerks: Thomas Clewley Matthew J. Higgins Audio Operator: Andrea L. Mack Transcribed by: Geraldine C. Laws Grace Williams Tracey Williams Laws Transcription Service (Proceedings recorded by electronic sound recording; transcript provided by computer-aided transcription service.) 3 1 (Whereupon the following occurred in open court at 2 9:30 o'clock a.m.:) 3 CLERK OF COURT KUNZ: Oyez, oyez, oyez, all manner 4 of persons having any matter to present before the Honorable 5 Dolores K. Sloviter, Chief Judge of the United States Court 6 of Appeals for the Third Circuit, the Honorable Ronald L. 7 Buckwalter and the Honorable Stewart Dalzell, Judges in the 8 United States District Court in and for the Eastern District 9 of Pennsylvania may at present appear and they shall be 10 heard. 11 God save the United States and this Honorable Court. 12 Court is now in session, please be seated. 13 JUDGE SLOVITER: Good morning. 14 JUDGE DALZELL: Good morning, everyone. 15 JUDGE SLOVITER: We have no preliminary, anything? 16 JUDGE DALZELL: I don't think so. 17 JUDGE SLOVITER: So we'll proceed with plaintiffs' 18 case. 19 MR. HANSEN: Good morning, your Honors, the 20 plaintiffs call Professor Donna Hoffman. 21 THE COURT CLERK: Will you please state and spell 22 your name? 23 THE WITNESS: Donna L. Hoffman, D-o-n-n-a L. 24 H-o-f-f-m-a-n. 25 THE COURT CLERK: Please raise your right hand. 4 1 DONNA L. HOFFMAN, Plaintiffs' Witness, Sworn. 2 THE COURT CLERK: Thank you, please be seated. 3 MR. HANSEN: Your Honors, I'd move into evidence the 4 declaration of Professor Hoffman which was signed on March 5 15, 1996, and previously filed in this court as her direct 6 testimony. 7 JUDGE SLOVITER: Is there any objection from the 8 Government? 9 MR. BARON: Yes, we object, your Honor. 10 THE COURT: Okay, then you better come forward and 11 tell us why. 12 MR. BARON: I'd appreciate the opportunity for voir 13 dire. 14 JUDGE DALZELL: Oh, well, certainly to the extent 15 you object, to the extent of you wanted some voir dire? 16 MR. BARON: Yes. 17 JUDGE DALZELL: Okay. Mr. Hansen, I was curious 18 myself. Dr. Hoffman is offered as an expert in what area? 19 It doesn't say in her declaration. 20 MR. HANSEN: I apologize, your Honor. Dr. Hoffman 21 is an expert in the marketing aspects of cyberspace and the 22 nature of cyberspace as it relates to marketing and usage. 23 JUDGE DALZELL: Okay. So that would be in the 24 marketing of cyberspace and -- 25 MR. HANSEN: And the nature of cyberspace. 5 1 JUDGE DALZELL: The nature of cyberspace. Okay, by 2 all means, Mr. Baron. 3 JUDGE SLOVITER: Excuse me just for a minute. 4 (Discussion off the record.) 5 MR. BARON: Good morning, your Honors. 6 JUDGE DALZELL: Good morning. 7 MR. BARON: Good morning, Professor Hoffman. 8 THE WITNESS: Good morning. 9 CROSS-EXAMINATION 10 BY MR. BARON: 11 Q Your expertise is as a Professor of Marketing, is it not? 12 A Yes, I'm a Professor of Management in the Marketing 13 Division at the Owens School at Vanderbilt University. 14 JUDGE SLOVITER: Mr. Baron, we know who you are but 15 because it's a new day's tape, maybe you should tell the 16 tape. 17 MR. BARON: O for two on that. Yes, my name is 18 Jason R. Baron, B-a-r-o-n, U.S. Department of Justice. Than 19 you, your Honor. 20 BY MR. BARON: 21 Q Professor Hoffman, you study strategic implications of 22 commercializing new communications media, do you not? 23 A Yes. 24 Q Your CV which is I believe Plaintiff's Exhibit 1 in this 25 case lists no peer reviewed references concerning empirical 6 1 studies or surveys that you have conducted on the amount of 2 pornography on the Internet, is that right? 3 A Yes, that's correct. 4 Q Nor are there any references on your CV to any surveys at 5 all that you have conducted on the Internet, correct? 6 A There's no peer reviewed published studies of any surveys 7 yet, that's correct. 8 Q Or non-peer reviewed? 9 A Yes. 10 Q Studies that you have conducted? 11 A Right, not yet, that's -- we're in the process of a paper 12 right now but it is not submitted for peer review. 13 Q Your CV doesn't contain any references to studies you 14 have done concerning the extent of pornography in 15 communication media other than the Internet, is that correct? 16 A That's correct. 17 Q In fact, as you stated in your deposition this past 18 Monday, you are not interested in pornography as a research 19 area, correct? 20 A Yes, that's correct. 21 Q Would you turn to Paragraph 122 of your declaration which 22 has been submitted in this action? 23 A Yes. 24 Q You state in this declaration that it is your, quote, 25 "impression," unquote, that there is a decreasing percentage 7 1 of the material in cyberspace that is sexually explicit, is 2 that correct? 3 A Yes. 4 Q Let me turn to your deposition of Monday at Page 185. In 5 response to a question, this was starting around Line 13, in 6 response to my question asking you that you will say that it 7 is your impression regarding the amount of sexually explicit 8 material in cyberspace, you answered: "Based on my own 9 experience," this is Line 15, "and observation and the 10 experience and observations of others who are Net veterans, 11 that is the conventional wisdom." 12 Question: "You're relying on conventional wisdom to 13 make those observations?" 14 Answer: "Yes, and experience." 15 Question: "And experience?" 16 Answer: "Yes." 17 Question: "Including your experience in looking at 18 particular sites on the Net?" 19 Answer: "Right." 20 Question: "But not in a systematic matter?" 21 Answer: "Correct." 22 Question: "Not in a scientific sample?" 23 Answer: "Right. And using -- that's correct, 24 that's right." 25 Question: "These are impressions?" 8 1 Answer: "These are impressions." 2 Question: "Unquantified?" 3 Answer: "Unquantified." 4 Did you state that testimony? 5 A Yes, I did. And I -- 6 MR. BARON: Thank you. 7 MR. HANSEN: Your Honor, I'd like the witness to be 8 able to finish her response to that question. I believe she 9 thought that the question required or the answer required 10 elaboration. 11 JUDGE DALZELL: Go ahead. 12 THE WITNESS: I've been studying the strategic 13 marketing implications of commercializing emerging media like 14 the World Wide Web on the Internet since 1983. I've been co- 15 director of a sponsored research center since 1994, so for 16 the past three years I've been studying activity on the World 17 Wide Web. 18 One of the papers that we have written, the 19 commercial scenarios paper, "Opportunities and Challenges" 20 which is published in a peer review journal, examines all of 21 the commercial Web sites for the purpose of categorizing 22 them. In the process of preparing that paper and all the 23 other papers that we have published I have extensive 24 experience surfing the Web both professionally and personally 25 and my impressions are based on that professional experience. 9 1 JUDGE SLOVITER: Excuse me, don't -- 2 JUDGE DALZELL: Yes, you can sit back. You don't 3 need to get close to the microphone, it's extremely 4 sensitive. 5 THE WITNESS: Sorry, okay. 6 BY MR. BARON: 7 Q Professor Hoffman, have you published any article on the 8 subject of anonymous remailing on the Internet? 9 A No. 10 Q Have you conducted any studies on anonymous remailing on 11 the Internet? 12 A No. 13 MR. BARON: Your Honors, I would submit at this time 14 that Professor Hoffman is an expert with respect to the 15 commercialization of the Net and marketing questions. 16 However, to the extent she presents testimony today on her 17 impressions regarding pornography on the Internet, they are 18 as a lay person and not as an expert. 19 JUDGE DALZELL: All right, well, that point is noted 20 and I'm sure you'll develop it further in your cross- 21 examination of Dr. Hoffman. 22 MR. BARON: Thank you. 23 JUDGE DALZELL: But I take it, based on what you 24 said, you do not dispute that she is qualified as an expert 25 in the marketing of cyberspace and the nature of cyberspace, 10 1 at least commercial cyberspace? 2 MR. BARON: We don't dispute that. Let me make it 3 very specific. When I objected to her declaration, parsing 4 the declaration in terms of the area of her expertise and the 5 area that she's giving lay testimony we would submit that 6 Paragraphs 114 through 132 of her declaration are not expert 7 opinion. 8 JUDGE DALZELL: 114 through 132. Well, you can 9 certainly develop that in detail in your cross-examination if 10 you'd like, but I see your point. 11 MR. BARON: Thank you, your Honor. 12 JUDGE DALZELL: Right. 13 BY MR. BARON: 14 Q Good morning, Professor Hoffman. 15 A Good morning. 16 Q You have studied the Internet from a marketing 17 perspective, correct? 18 A Yes, from a marketing perspective and from a 19 communications perspective. 20 Q And you specifically studied the commercialization of the 21 Net, correct? 22 A One of my research interest has to do with the 23 commercialization of the World Wide Web on the Internet, 24 that's correct. Another one of my research interests has to 25 do with how consumers behave in this environment and how 11 1 people communicate in this environment. 2 Q And you've coined a few terms along the way, have you 3 not? 4 A Yes. 5 JUDGE DALZELL: Not acronyms, I hope. 6 THE WITNESS: No -- well, sort of. 7 (Laughter.) 8 MR. BARON: In part, your Honors, in part. 9 BY MR. BARON: 10 Q Would you turn to Page 25 -- sorry, Paragraph 25 of your 11 declaration and could you please explain to the Court what 12 you are referring to by the term in italics, "Hyper media 13 computer mediated environment (CME)"? 14 A The term "hyper media computer mediated environment, 15 which I agree is a mouthful, which is why we've shortened it 16 to CME which is much easier to say has to do with the idea of 17 defining a new medium like the World Wide Web on the Internet 18 as a communications medium in which people can both provide 19 an access, multi-media content that is also hyperlinked. 20 So in other words, from the demonstration we saw 21 yesterday, the information that's available on the Webpage is 22 what we would call hypermedia because there's sound 23 information there, there's textual information there, there's 24 information contained in the context of these hyperlinks or 25 hot links and all of this information is available in what we 12 1 call a distributed computer environment. 2 So it's an environment in which people can 3 communicate with each other but that communication is 4 mediated or takes place through a computer. So that's the 5 context or the sense in which we mean computer mediated 6 environment or CME because it's designed to illustrate the 7 idea that when people are communicating, the communication is 8 through the computer or when they're providing content 9 through the medium, that computer mediates the content or 10 mediates the way they access the content. So, for example, 11 the point and click with the mouse movement or putting the 12 information on the computer. 13 Q Would one example of sound on the Internet be Internet 14 Talk Radio? 15 A Yes, that would be one example of audio or sound. Now-- 16 Q And what's your understanding of Internet Talk Radio? 17 A Well, in a -- in a non-technical sense? 18 Q Yes. 19 A My understanding of Internet Talk Radio is that it is an 20 application which is very much like radio but is served up or 21 facilitated in a computer environment so that information is 22 stored on someone's computer which is in the context of sound 23 and then a person can click on a link which has to do with 24 that talk radio and then listen to whatever has been 25 programmed by someone. 13 1 Q Thank you. If you could turn to Paragraph 44 of your 2 declaration, you have in italics the term "Telepresence 3 View," unquote, of mediated communication. Could you inform 4 the Court what you're referring to there? 5 A Yes. First I should say I did not invent the term 6 "telepresence," that was attributed to Jonathan Steuer who 7 wrote his doctoral dissertation at Stanford on that topic. 8 However, it's a very interesting concept and the idea is that 9 there are two different ways that people can perceive that 10 they're in an environment. One way is what we might call the 11 presence view, in other words, I perceive that I am in this 12 physical environment and so I have a presence of being here. 13 The other way is that I can have a telepresence view, in 14 other words, I can have a perception that I am in the 15 mediated environment, in other words, that I am involved in 16 what's happening on the World Wide Web. And both of those 17 perceptions can take place when people are interacting in a 18 computer-mediated environment like the World Wide Web. 19 Q Could you also turn to now Paragraph 73 of your 20 declaration, that's on Page 17, and -- 21 A I'm sorry, would you repeat the paragraph, please? 22 Q Paragraph 73. 23 JUDGE DALZELL: Page 17. 24 BY MR. BARON: 25 Q And inform the Court what you mean by the concept of, 14 1 quote, "flow," f-l-o-w, unquote, in terms of an individual's 2 experience on the Net. 3 JUDGE DALZELL: Why don't you put on that light, Mr. 4 Hansen, so she can see better? That little light. 5 JUDGE SLOVITER: The thing under the green. 6 JUDGE DALZELL: Known as a lamp. 7 (Laughter.) 8 JUDGE SLOVITER: It's very old-fashioned. 9 JUDGE DALZELL: L-a-m-p stands for nothing. 10 (Laughter.) 11 MR. BARON: Don't be so sure, your Honor. 12 (Laughter.) 13 JUDGE DALZELL: Touche. 14 THE WITNESS: Yes, the concept of flow was first 15 developed by a psychologist who developed it in the context 16 of activities like, for example, rock climbing, playing 17 chess, dancing, listening to music and other sorts of 18 activities like that. And the idea -- and we have extended 19 it to describe what happens in computer-mediated environments 20 when people are engaging in interactive relationships in 21 those environments. 22 And it is a process or an experience that 23 individuals engage in and the first thing that happens is 24 people pay attention to what's going on in the environment, 25 then they have an experience of being totally immersed in the 15 1 environment which they perceive as being very enjoyable. 2 As a consequence of engaging in this flow experience 3 a number of nice things happen. For example, people report 4 increased learning in the environment, they report being very 5 satisfied by the experience in the environment, they engage 6 in more exploratory and participatory behaviors which means 7 they're more likely to try to explore and find out more 8 things in the environment and they perceive a sense of being 9 in control in the environment. 10 So we have used the construct or the concept of flow 11 to describe how people experience being in an environment 12 like the World Wide Web. 13 BY MR. BARON: 14 Q And finally, Professor Hoffman, in terms of definitions 15 what do you mean by these terms that you've referred to in 16 your writings as information bank or knowledge base for 17 future memory? Are you familiar with those terms? 18 A Yes, you're talking about the external memory concept 19 that we've developed, is that correct? 20 Q I believe so. 21 A The idea there is in an environment like the World Wide 22 Web there is a unique facility for people to be able to 23 remember things without having to write them down and that is 24 through the Bookmark facility which is a feature of browsers 25 like Netscape, for example. 16 1 So as I am surfing, for example, through the World 2 Wide Web and I move through cyberspace clicking on links that 3 attract my interest or that I'd like to learn more about, if 4 I see something that I want to remember because I might want 5 to come back another time, I can store it in my Bookmark, as 6 we saw our demonstration yesterday. 7 And in a marketing or consumer context that could 8 lead to what we call external memory because in a, for 9 example, a product purchase sense, if I see some information 10 about an automobile and I want to go back at another time, 11 maybe I'm interested in buying a Saab but today I'm just 12 going to surf but get some information about it but maybe 13 next week I want to go back because I don't remember where 14 that link was, but the Bookmark facility allows me to 15 remember without having to store it up here and we call that 16 external memory. 17 Q Would it be fair to say -- 18 JUDGE DALZELL: Excuse me. 19 MR. BARON: Oh, sorry. 20 JUDGE DALZELL: Is user net navigation as you use it 21 in here synonymous with surf? 22 THE WITNESS: One part, surfing is one part of the 23 network navigation or user navigation experience. We 24 identify two types of network navigation, one which we call 25 experiential which is browsing or surfing just for fun, just 17 1 to sort of see what's out there and it's something we would 2 consider to be very ritualized, or in the psychological 3 parlance something we call hedonic which means it's fun and 4 we, you know, get a lot of pleasure from it. 5 The other type of user navigation or network 6 navigation we refer to as goal directed and not that that 7 wouldn't be fun, but in other words, I have a purpose, I am 8 looking specifically for some information about Saabs today. 9 JUDGE DALZELL: Got it, thank you. 10 BY MR. BARON: 11 Q Would it be fair to say, Professor Hoffman, that your 12 work in this area involves how adults as opposed to children 13 experience the World Wide Web and the Internet? 14 A Yes. 15 Q There aren't any studies, are there, on whether children 16 have a similar flow experience in the context of a hypermedia 17 computer mediated environment, correct? 18 A That's correct. 19 Q And so far as you are aware there has been no scholarly 20 research done on children's ability to build an information 21 memory bank or bookmarks, as you said, based on experiences 22 good and bad while on the net, correct? 23 A That's correct. 24 Q Please tell the Court what you mean by Net surfing? 25 There was a question but why don't we go over it again. 18 1 A By surfing I mean the process of, as I said before, 2 experiential behavior or activities on the World Wide Web by 3 browsing for information in which I have no particular goal 4 to find a particular piece of information and there's two 5 important components of the surfing process. One could be 6 I'm surfing or browsing because I have an enduring or an 7 ongoing relationship with the computer, so it's the computer 8 itself that I'm interested in and I just surf every day 9 because I like the computer, for example. 10 The other type of surfing or browsing behavior could 11 occur -- and these aren't mutually exclusive -- would be that 12 I have an enduring or an ongoing interest with the sorts of 13 things that I'm surfing for. So those might be information 14 about automobiles or information about stocks, financial 15 information, information about companies, scholarly 16 information, you know, there's an entire gamut of things. 17 And so maybe tomorrow I'm -- or today I would surf 18 for information and see what was the latest information in an 19 on-line magazine, for example, or I might want to find 20 something about my favorite writer, that sort of thing. And 21 so it's not particularly direct and I'm not looking for 22 something specific, I just want to see what's out there in a 23 general sense. 24 Q Would it be fair to say -- well, let me read you a 25 portion of your deposition and see whether you agree to it. 19 1 This is on this point. I'm paraphrasing from Page 72, Line 2 3. "If you are looking just to browse to just look for 3 something for fun, say, because you're interested in cars, 4 for example, but nothing specific, you might enter the word 5 cars and then tens of thousands of documents would appear and 6 you would choose one of those and you would click on it and 7 off, click on and off, and that would take you to a 8 particular Web site, whatever caught your fancy. From there 9 you could click on something else and go somewhere else, you 10 can go using the back key, for example, or one of the browser 11 navigation aids, a Netscape." 12 Tell the Court that in the deposition is a third 13 tense rather than first tense, but is that statement correct? 14 A Yes, it's correct. 15 Q Okay. Thank you. Now, children under the age of 18 Net 16 surf, don't they? 17 A Yes. 18 Q At the deposition this past Monday however you stated 19 that you know, quote, "next to nothing," unquote, about the 20 behavior of children on the Internet, correct? 21 A That's correct. 22 Q You haven't studied what kind of use children make of the 23 World Wide Web, correct? 24 A That's correct. 25 Q Or any of the other Internet applications including FTP, 20 1 Usenet, Gofer, et cetera, correct? 2 A That's correct. 3 Q Could you turn to Defendant's Exhibit 57, the books are 4 on your left at the bottom, and it's the second volume? MR. 5 BARON: It's in the second volume, your Honors. 6 BY MR. BARON: 7 Q Do you see Exhibit 57? 8 A Yes, I do. 9 Q Could you describe for the Court what this is? 10 A This is a -- we might call it a newsletter or a summary 11 example of some research that's being conducted at Carnegie 12 Mellon University under the name of Homenet and it's a five- 13 year or they're hoping five-year but right now it's multi- 14 year field trial of residential Internet use in the 15 Pittsburgh area. 16 Q The Human Computer Interaction Institute at Carnegie 17 Mellon is a respected research center and institution, 18 correct? 19 A Yes. 20 Q If you would turn to what is Subpart 4.4 on Page 3 of 21 this exhibit? 22 A Yes. 23 Q The subsection says "Teens Lead the Family," do you see 24 that? 25 A Yes, I do. 21 1 Q Is it correct to say that the study found that the 2 heaviest use -- users of the Net in 48 families studied were 3 teenage children? 4 A Yes, that's correct. 5 Q Do you rely on this study in your own research as what 6 you consider to be the first credible study of the 7 consumption experience in the home regarding the Internet? 8 A Yes. I use this study as background information for both 9 the empirical work that we're conducting and our theoretical 10 work because it is the first study that has actually put 11 computers in the home. However, the study has to be 12 qualified on a number of important dimensions. One is it's 13 taking place in the Pittsburgh area which is a major urban 14 center in the United States. Another is that it only has 48 15 families and so that is an extremely small sample, so we have 16 to be very careful about drawing broad conclusions about 17 behavior. However, I think the results are very interesting 18 and can be useful for suggesting some trends. 19 Another qualification or limitation is that the 20 families were solicited on the basis of locating high school 21 students who were on the school papers at the high schools 22 that they attended so you would expect that these journalism 23 students in high school and being editors of the paper or 24 else writers for the paper would be lead users of the 25 computer. So in that sense the results will suggest what's 22 1 happening with lead users or pioneers and are not indicative 2 of the general population. 3 Q May I ask that you turn to Defendant's Exhibit 44 which 4 may be in the first volume by your side? My apologies, I 5 think your exhibits are in both volumes so we're going to go 6 back and forth. 7 A That's okay. 8 (Pause.) 9 A Okay. 10 Q Do you recall my showing you what are statistics from the 11 Census Bureau? 12 A Yes, I do. 13 Q If you would turn to page 2 of the exhibit, do you see 14 the Table A, "Level of Access and Use of Computers: 1984, 15 1989 and 1993," where the numbers are in thousands? 16 A Yes. 17 Q Maybe it would be helpful, can you summarize just what 18 this table is attempting to get at? 19 A Yes. This -- this is from the CPS or the current 20 population census from 1993, I believe, and what it is 21 attempting to show are the trends in access and use of 22 computers in the United States over the last decade or so for 23 children and for adults. Would you like me to say more? 24 Q You stated in your deposition that while you didn't 25 dispute these figures, to you they represented an upper 23 1 bound, correct? 2 A Yes, that's correct. I do research on the use and access 3 of the Internet and am engaged right now in an empirical 4 study of those aspects and in fact a very interesting 5 research question from my perspective is what it means to ask 6 someone if they have access to a computer and what are they 7 thinking when you ask them that question and what sort of 8 information do you get. And also what does it mean when you 9 ask someone if they use a computer and what sort of 10 information you get. And one conclusion we are coming to is 11 that the access question is an upper bound on use because it 12 tends to evoke an awareness type of response. 13 When you ask someone if they have access to 14 something it seems to suggest in their minds, oh, well, I 15 know about it, I'm aware of it, yeah, I have access because 16 my neighbor down the street has a computer and so in that 17 sense I believe I might have access. 18 The use question tends to be more, a little bit more 19 specific because now you're actually asking somebody do you 20 actually use a computer and so as you can see from the table 21 here for 1993 the access figures are higher than the use 22 figures. And so you expect to see this winnowing down effect 23 as you get more specific in the type of usage questions you 24 ask someone and in fact I would expect -- and these data do 25 not show it because they're so aggregate -- that if we say 24 1 well, do you use a computer every day the number would be 2 much, much smaller. 3 Q All right, well, thank you. These -- 4 A You know, I have a point to make about this table which I 5 noticed which is -- I'm sorry, may I? 6 JUDGE SLOVITER: Well, excuse me. 7 (Discussion off the record.) 8 JUDGE SLOVITER: Well, there's no objection. 9 JUDGE DALZELL: Well, I'm sure -- 10 MR. BARON: I have no objection, your Honor. 11 JUDGE SLOVITER: You have an objection? 12 MR. BARON: I have no objection, your Honor. 13 JUDGE SLOVITER: Oh, he has no objection. 14 JUDGE DALZELL: All right, go ahead. 15 JUDGE SLOVITER: Okay. 16 THE WITNESS: I -- the point that I want to make, I 17 think, illustrates the difficulties involved in trying to 18 measure access and use of computer networks or use of 19 computers or use of the Internet. For example, if you'll 20 look at column -- the first set of numbers under "Number" and 21 you'll see 1993, it says "Do you have access to a computer," 22 it's for three to 17 year olds, and the number given is 23 17,829,000 people in the United States in 1993 between the 24 ages of three and 17 are estimated to have access. And yet 25 and then you look at do you use a computer and you see that 25 1 12 million say they use a home computer, 28 million say they 2 use a computer at school and then 32 million say they use it 3 at anyplace and the figure seems somewhat out of whack 4 because it's so much higher that they would use it anyplace 5 and you wonder what those other places are, particularly for 6 three to 17 year olds. And so it just reflects some of the 7 difficulties, I think, involved in trying to tap these -- 8 using these sorts of statistics for anything more than 9 looking at trends, at least at this point in time. 10 BY MR. BARON: 11 Q All right, well, thank you. Now, you state in your 12 declaration that the Internet is unique, that it's very 13 different than other media, correct? 14 A That's correct. 15 Q As one of the ways that you pointed out that the Internet 16 is unique is that it's essentially a 24-hour a day, seven day 17 a week medium? 18 A Yes, that's correct. 19 Q URL's are always there in cyberspace, correct? 20 A Well, they're there as long as the computer behind them 21 hasn't shut down, that's correct. 22 Q Okay. And one of the features you've emphasized here 23 today in your deposition that is how easy and sometimes how 24 fun it is to Net surf, correct? 25 A Yes, that's correct. 26 1 Q There's a popular search engine for Net surfing called 2 "Alta Vista," correct? 3 A Yes. 4 Q Could you turn to Paragraph 66 of your declaration? 5 Paragraph 66 which is on Page 15 at the bottom, I'll read the 6 first two sentences: 7 "The Web differs from broadcast media like 8 television and radio in two important respects. First on the 9 Web individuals must seek out the information they want to 10 consume, individuals do not passively receive information nor 11 does information suddenly appear surprising them." 12 That's your statement, correct? 13 A Yes. 14 Q Let's say a child or a teenager was performing a surf, 15 surfing the Net in response to let's say a book project in 16 school, okay? 17 A Okay. 18 Q Let's say the book that they were interested in learning 19 more about because either they had read the book or because 20 they had seen the book was Little Women by Louisa Mae Alcott, 21 okay? 22 A Okay. 23 Q What would the child or the adolescent do in terms of 24 surfing the Net in terms of a simple search using Yahoo or 25 Infoseek or Alta Vista or some other search engine, what 27 1 would they do? 2 A Well, first of all, it would depend on the child. If we 3 go back to the concept of flow for a moment, it's a very 4 important idea to recognize that in computer mediated 5 environments there is a competency issue that is introduced 6 that is not relevant in the physical world, particularly for 7 the use of other media. And so this competency issue 8 involves the idea that people have a set of skills that they 9 have to bring to the environment in order to be able to 10 facilitate navigating through it. And the environment itself 11 also presents challenges to the individual as they're trying 12 to navigate. 13 And so what a child would do would depend on the age 14 of the child, the child's characteristics and particularly 15 their competency to navigate through this environment. 16 Q Assuming that the child knew how to type words into a 17 browser or search engine? 18 A So we're talking about a child that's literate, computer 19 literate -- 20 Q Right. 21 A -- and old enough to understand the Netscape browsing 22 concept? 23 Q Right. 24 A And the concept of search agents? 25 Q To search for Little Women what words do you put into the 28 1 browser or what do you type into Infoseek or Alta Vista? 2 A If I were -- if I were instructing my child, for example, 3 on a book report -- my child is too young to do this but if 4 my child were older -- then we would go to Netscape, we would 5 go Alta Vista and then in advanced search cause I would help 6 him do this we would enter "Little" plus "Women" plus 7 "Louisa" plus "Mae" plus "Alcott." Actually we would use the 8 "and" key and then we would get all of the documents from the 9 22 million documents that are referenced in Alta Vista, we 10 would get the documents that satisfy that criteria. That's 11 what I would do with my child. 12 Q Can you turn to what -- now we've marked this as Exhibit 13 13A and with the Court's indulgence, it does not have a 14 separate tab in these books, it's found as the second 15 document under Tab 13. 16 (Pause.) 17 Q Do you see that document? 18 A Yes, I do. 19 JUDGE DALZELL: It's the one that has "Win a trip to 20 Hawaii" on it? 21 MR. BARON: Yes, correct, your Honor. 22 (Laughter.) 23 BY MR. BARON: 24 Q Are you generally familiar with this form of document as 25 produced by Infoseek? 29 1 A Yes, I am. 2 Q Would you take a look at the fifth entry on this 3 document? 4 A Yes, I see it. 5 Q This document was produced by typing in the words "Little 6 Women" correct? 7 A Yes, that appears to be the case because at the top it 8 says "Search for" and then in the bold, the two words, 9 "Little Women" and that had produced a search for all 10 documents on the Internet that have the words "little" in 11 them or have the words "women" in them in the title in the 12 URL. 13 Q And what does the fifth entry represent? 14 A You want me to read it? 15 Q Yes, please. 16 A "See hot pictures of naked women," exclamation point. 17 Q Isn't it possible, Professor Hoffman, that a child might 18 be surprised in stumbling across that entry in the context of 19 an on-line search? Isn't it possible? 20 A It's possible if the -- I -- it's possible that that 21 child would be surprised. 22 Q Thank you. Why don't we turn to the concept of hits when 23 you're conducting a search. 24 A Okay. 25 Q Could you explain to the Court what a hit is? 30 1 A Yes, a hit is a measure, it's a, literally it's an entry 2 recorded in the server log of the computer that is the Web 3 server that says a file has been accessed when someone comes 4 to that particular page. But the hits, there's quite a bit 5 of controversy about the hits because, for example, on the 6 home page for our center, Project 2000, when someone comes to 7 that front page or the front door of our virtual research 8 center, that counts as say ten hits. 9 And the reason it counts as ten hits is because we 10 have an image map, in other words, we have a picture on the 11 front with some nice drawings on it and on the map itself you 12 can click in different places and go to my curriculum vitae, 13 go to Professor Novak's curriculum vitae, go to the Owens 14 School's home page. 15 And so on and then there's a set of links that you 16 can go to our research papers, you can go to some other 17 people's research papers or whatever. 18 In the process of serving up that front page, that 19 records approximately ten hits on my server log. So the hit, 20 and that's the reason there's so much controversy over Web 21 measurement, hits are not an accurate measure of how many 22 people are coming to the Web site because depending on how 23 many images I have on my front page or how many links I 24 choose to put on the front page, I can inflate the number of 25 hits. 31 1 But a hit literally is a file served on that 2 computer server. 3 JUDGE DALZELL: Let me interrupt you for a second. 4 What if you came in the back door? 5 THE WITNESS: You mean to another page? 6 JUDGE DALZELL: In other words, if you came in 7 through another link -- 8 THE WITNESS: Right. 9 JUDGE DALZELL: -- rather than hitting the front 10 page of your home page you found, for example, I mean what 11 Mrs. Duvall gave us yesterday with the fragile X, as I recall 12 it. 13 THE WITNESS: Right. 14 JUDGE DALZELL: If you came in the back door to the 15 fragile X foundation that way, would that be a hit? 16 THE WITNESS: Yes, that would also be a hit. So, 17 for example, fragile X has a home page but fragile X has many 18 sites that are enduring and have lots of content on them, 19 they might have thousands of pages. Some very deep sites 20 might have 10,000 pieces of information. 21 So each of those pages has a URL associated with it 22 and then if someone were to come in, as you say, through one 23 of these back doors because you knew the URL directly and you 24 went directly to that page rather than going through the 25 front door, that page itself could be served up at least as 32 1 one hit but again depends on how many things are on that 2 particular page. 3 JUDGE DALZELL: So in Project 2000's count, if 4 someone comes in by what I call the back door and I think we 5 agree it's called the back door to, say, Page 17 -- 6 THE WITNESS: Well, there's -- 7 JUDGE DALZELL: -- if there is a Page 17. 8 THE WITNESS: Yeah, there's not really a concept of 9 Page 17 because one of the unique features of the Web is that 10 it's not a linear. 11 JUDGE DALZELL: No, I understand that, but if you 12 were to print it out in hard copy it would be Page 17, each 13 screen. 14 THE WITNESS: Well, not necessarily because unless I 15 particularly marked it to say Page 17, but -- 16 JUDGE DALZELL: All right. 17 THE WITNESS: But it's a page, it's another page. 18 Not the, you know, cause there's lot-- literally think of it 19 as a web and there's lots of different ways to meander 20 through either a particular site in a non-linear fashion or 21 through the entire Web. 22 JUDGE DALZELL: Well, when you measure the hits, 23 whatever their -- 24 THE WITNESS: Right. 25 JUDGE DALZELL: -- inaccuracy may be, that also 33 1 includes the back door -- 2 THE WITNESS: Yes, it does. 3 JUDGE DALZELL: -- accesses, correct? 4 THE WITNESS: In fact that's why we don't measure 5 hits and that's why there's been for particularly for 6 commercial purposes because this is a very hot topic with 7 advertisers right now and advertising agencies. 8 JUDGE DALZELL: They want to know hits per thousand, 9 right? 10 THE WITNESS: Right, and it's been completely, I 11 mean there's very few firms now that either will sell space 12 on a Web site on the basis of hits or will even talk in the 13 context of hits because in the last year there's been so much 14 attention, people have done a lot of work including the 15 Project 2000 discussing why this is a very bad idea. 16 So instead what people do, there are several things. 17 So hits are really the upper bound. I mean there's no more 18 than the hits as the measure of what's happening on your Web 19 site, but it's a completely useless measure from my 20 perspective as a measure of activity from a consumer 21 perspective. 22 The lower bound is what we call unique domains. The 23 server log also records when someone comes to the site 24 there's their domain name attached to it. So, for example, 25 if I'm visiting a Web site I have my own domain and IP 34 1 address because I have my own machine connected directly to 2 the Internet. My address at Vanderbilt is 3 Collett.OGSM.Vanderbilt.EDU, so whenever I go somewhere with 4 my browser from my machine to another Web site anywhere in 5 the world, the server log of those sites that 6 Collett.OGSM.Vanderbilt.EDU went to the site. It doesn't say 7 Donna Hoffman went because they don't necessarily know it's 8 me, they just know that machine went. That is a domain. 9 So the server log for a particular site will record 10 all those domains and it's very possible and very easy to 11 write computer programs to count how many domains came in a 12 day, in an hour to a page, to all the pages, to the home page 13 and so on and then throw out the ones that are multiples. 14 So, for example, our site gets hit a lot by 15 Gateway.Senate.GOV and -- but if they come more than once, 16 first of all, I have no idea who it is, but if they come more 17 than once I'll discount it once and say I had a unique visit 18 today from Gateway.Senate.GOV and then I can count over time 19 how many of those unique domains I had in a single day. 20 So the Project 2000 site gets anywhere from a 21 thousand to two thousand or so, maybe 1800, unique domain 22 visits a day. It probably gets tens of thousands of hits, 23 but that's irrelevant. What's much more important to know is 24 how many lower bound people actually came to my site. 25 JUDGE DALZELL: Sorry to interrupt. 35 1 JUDGE SLOVITER: Could I get just one little 2 clarification while we're doing it? On this exhibit that 3 doesn't have a page -- well, it does, it's one of two in 13A 4 that you called our attention to, would any of these 5 references be a hit even if the user, searcher, surfer 6 didn't click on them, if the page has come up would these be 7 considered, would they all be considered hits or would none 8 of them be considered hits until the person wants to link 9 with the little hand? 10 THE WITNESS: Right. 11 JUDGE SLOVITER: Well, which one? There's an 12 either/or-- 13 THE WITNESS: Yes, they would not be -- they would 14 not be considered hits because for these search engines, 15 Infoseek is not a -- is a directory. And so when I go to 16 Infoseek to search, for example, in this case or when he went 17 to search for Little Women, that created a hit on Infoseek 18 because somebody went to Infoseek and let's say you went and 19 you had a domain associated with your computer, which you 20 would, it would record that you were there. 21 Now, this page is served up from Infoseek's 22 directory so there is no hit recorded for the WWW Women's 23 Sport Page by Amy Lewis and so on. 24 JUDGE SLOVITER: Okay. 25 THE WITNESS: However, if you then choose to click 36 1 on one of these links you will be taken to that site and that 2 would record a hit. 3 JUDGE SLOVITER: Okay. And you would have 4 instructed your son, if you were helping your -- is it 5 correct that you would have instructed your son if you were 6 looking for Little Women to put "little" with an and? 7 THE WITNESS: Yes, I would. Well, first of all, I 8 probably wouldn't use Infoseek, I would use -- but whatever. 9 But even Infoseek, I believe, allows you to use term -- I am 10 blanking on the name, but symbols that allow you to refine 11 your search because I would know, being an experienced user 12 of the computer, that searching for the two words, "Little 13 Women" would produce many more things than I would be 14 interested in. 15 JUDGE SLOVITER: But is it true that a child might 16 not know? 17 THE WITNESS: It's true, but I think the reason is 18 that I would be with my child educating him on how to use the 19 computer and how to engage in these search processes, at 20 least until I felt he was -- knew how to do it on his own. 21 So I would not let him sit there and do this. 22 JUDGE DALZELL: But if your son were 12, let's say, 23 and by now an experienced surfer, isn't it a fair assumption, 24 as Chief Judge Sloviter is suggesting, that he would just 25 type in Little Women? That is the natural search. 37 1 THE WITNESS: Actually, I believe that if he were 12 2 and an experienced surfer, particularly on the basis of my 3 tutelage, he would know that it would be a waste of time to 4 type in Little Women and because by then he would have moved 5 through the processes we described in our search and he would 6 have moved from being a browser to a more goal-directed user, 7 he would be much more experienced. 8 And if he knew what he was looking for he would know 9 how to get to it. 10 JUDGE DALZELL: But the point is the more naive the 11 searcher, the more likely they are to pick up what Mr. Baron 12 has called your attention to, isn't that the point? 13 THE WITNESS: Yes, I believe that's true, the more 14 experienced they are, the more likely they would be to not 15 know how to do sophisticated searches. 16 JUDGE SLOVITER: And that's particularly true of 17 children, isn't it, who don't have the benefit of a parent 18 who is an expert in this area? 19 THE WITNESS: Well, that would be more true, yes, 20 that's true, but then there are also schools that instruct 21 children on how to use the computers in the Internet and how 22 to go through searching facilities and teach them the tools 23 necessary to use the Internet as a communications tool. 24 JUDGE SLOVITER: I think Mr. Baron was probably 25 getting at the -- he was trying to get to the number of hits, 38 1 so while we'll let you go back to that then. 2 MR. BARON: Well, this is an interesting discussion, 3 but -- 4 JUDGE DALZELL: Well, thank you. 5 JUDGE SLOVITER: We aim to please. 6 (Laughter.) 7 MR. BARON: I want to add a layer of complexity to 8 the subject of hits and I was going to go off on a different 9 tangent which is to ask you to tell the Court what are "Bots" 10 and what are "Spiders." 11 JUDGE DALZELL: Bots? 12 MR. BARON: B-o-t-s. 13 JUDGE DALZELL: That's an acronym, right? 14 THE WITNESS: Not really. 15 MR. BARON: I'll let Professor Hoffman describe it. 16 THE WITNESS: Bots or Robots, Bots for short. 17 JUDGE DALZELL: A contraction. 18 THE WITNESS: And Spiders and Intelligent Agents are 19 a class of software programs that are tools that enable 20 people to perform specific tasks on the World Wide Web, for 21 example, seek out specific types of information or URL's or 22 whatnot. 23 BY MR. BARON: 24 Q Does Alta Vista employ a Bot? 25 A Yes, I don't know if they call it a Bot or a Spider, but 39 1 Alta Vista employs software that allows it to traverse the 2 Web to find the URL's that exist on the Web so they can store 3 them in a database so that when you go there to search you 4 can find what you're looking for. 5 Q And you stated in your deposition that you thought there 6 were about 10 to 20 directories and search engines that are 7 popularly used today, correct? 8 A Yes, it's correct. For example, if you go to the 9 Netscape Homepage and go to their Searchpage, Netscape which 10 is the most popular browser on the Internet for use in the 11 World Wide Web has a page which provides for its customers 12 the ability to go search. And so they have a page with all 13 the search engines there and all the directories. And I 14 think the directory page may list 10 to 15 directories or so 15 and the search engine page may list another 10 to 15 or so, 16 so maybe there's 10 to 20, maybe there's 30 and they're 17 changing all the time. 18 There's probably about 250 directories and search 19 engines all over the Web but I don't think that they're all 20 equally popular. 21 Q Well, you told me at your deposition, didn't you, that 22 for the 10 or 20 major ones that they're all employing Bots 23 or some other software to search the Web for URL's to 24 incorporate in their database, correct? 25 A Yes, I told you that and also we have to make an 40 1 important distinction because some of the directories also 2 employ human beings who will go out and search for 3 information and then make a determination on whether it 4 should be included in their directory. 5 And there's a very important distinction between a 6 search engine and a directory because search engines like 7 Alta Vista, for example, do not discriminate. If it's on the 8 Web and they can find it, it will go in the database. And 9 they currently catalogue 22 million unique URL's. 10 So that's considered to be right now our best guess 11 at the universe of information available on the World Wide 12 Web. They also catalogue about 11 billion words and that's 13 considered to be the universe of information right now on the 14 World Wide Web. 15 However, a directory, for example, Magellan which is 16 also referred to as the McKinley Index, these are -- this is 17 a directory where people have made a choice about what URL's 18 to include and then they look at the site and then they rate 19 it using a star system where four stars is the best. 20 So on these directories you find a much smaller 21 universe of URL's from which you can search. 22 JUDGE DALZELL: And your testimony is that the best 23 guess at least at some recent time was that there are 22 24 million URL's out there or were? 25 THE WITNESS: Well, it's not a guess, it's just that 41 1 we know that Alta Vista indexes 22 million unique URL's in 2 its database. The thing that is interesting is last month 3 they indexed 21 million, so it's grown by one million unique 4 URL's in about the last four weeks. 5 JUDGE DALZELL: What does a typical directory, how 6 many do they -- 7 THE WITNESS: It -- it depends. It might be 5,000, 8 it might be a few hundred, it might be 10,000. They're 9 typically smaller, especially if they have to go through and 10 somebody has to like look at these things and make some 11 determination about them. 12 JUDGE DALZELL: So the difference between the 13 directory and the search engine is the search engine 14 encompasses all? 15 THE WITNESS: It could, that could be a difference, 16 yes. For like -- yes, for Alta Vista which is a search 17 engine or Lycos which is a search engine, right, those 18 encompass all, they do not discriminate. If it's out there 19 and the software finds it, it will store it in a database. 20 Yahoo, for example, to use a very prominent 21 difference, Yahoo is a directory and Yahoo catalogues, Yahoo 22 has a person, a human being who sits there and she decides 23 this URL will go in, this URL will not go in. She also 24 decides how to catalogue them so the main distinction between 25 directories and search agents is a directory catalogues or 42 1 otherwise structures the information for you. 2 So like if you go to Yahoo, you can look -- let's 3 say you're interested in information about sports. There's a 4 sports heading and you can click there and there will be all 5 the links on sports. And Alta Vista -- 6 JUDGE DALZELL: Just all the links that Yahoo gives 7 you? 8 THE WITNESS: All the links that Yahoo has 9 determined should be included in its directory under the 10 heading sports, yes. 11 There's another well known directory open -- Yahoo, 12 like for example, I don't know how many URL's Yahoo has, it 13 has a lot, but as an example, in their company's directory 14 which is the commercial portion of Yahoo there's over 50,000. 15 In -- but if I were to search for companies on Alta 16 Vista I would get millions, so it would be many more. Open 17 Market, another popular directory, lists about 22,000 18 entries, so it's a little -- it's much smaller than Yahoo but 19 they go through a more detailed process in order to register 20 your information. 21 JUDGE DALZELL: And Alta Vista is growing at about 22 one million URL's a month? 23 THE WITNESS: Well, last month it grew one million 24 URL's. 25 JUDGE SLOVITER: Because it was cold and people had 43 1 nothing else to do. 2 (Laughter.) 3 BY MR. BARON: 4 Q Well, let me just ask a couple more questions about this 5 topic of search for hits. Individuals are also employing 6 Spiders to go out and traverse the Web looking for 7 information, correct? 8 A Yes. 9 Q And the server log on a Web site records that access 10 having been made to that page, correct? 11 A That's correct. 12 Q For Spiders and for Bots? 13 A The server log records whenever another computer comes to 14 its Web site so the Spider or this Intelligent Agent or the 15 software program had to come from somewhere just as if I were 16 visiting and the server log records that access as a domain 17 visit, yes. 18 Q Even without any real human person looking at that site? 19 A Yes, that's true. 20 Q And the major directories or search engines, the ten or 21 twenty you've described or more, go out and search at least 22 one, once a day and probably much more often, correct? 23 A Yes. 24 Q And they go back to sites that they've already visited to 25 see what's new, correct? 44 1 A Yes, that's correct. 2 Q Okay. There are lots of directories out there in 3 cyberspace that have URL's, correct? 4 A Well, yes, by definition if it's a directory on the Web 5 it must have a URL. 6 Q You said in your deposition that there are hundreds if 7 not thousands of examples of individuals who have put 8 together indexes on particular topics of interest to other 9 individuals in cyberspace, correct? 10 A Yes, that's correct. 11 Q And one of the ways that directories come into being or 12 one of the ways that one can communicate in cyberspace is to 13 fill out forms, correct? 14 A Uh -- 15 Q Why don't you explain to the Court what a form is, a Web 16 form? 17 A A fillout form is a page on someone's Web site which has 18 the facility to take information from you if you would care 19 to give it. So, for example, sort of a classic use of a 20 fillout form in a commercial context would be to give your 21 name, demographic information and maybe your credit card 22 number. So there would be little spaces there for you to 23 type in your name, there might even be little sort of virtual 24 bubbles, if you will, that you could use a mouse to click and 25 say what gender you were and it would say male, female, maybe 45 1 a little button and you'd click whether you were a male or 2 female. Then there would be another box to enter some 3 information that the firm might like to know about you and 4 that would be captured through what is called a fillout form. 5 And there would be many other uses. We use them on 6 the Project 2000 site to get information about people that 7 visit so we can put them on a mailing list, for example. 8 Q Could you turn to Exhibit 40? You mentioned earlier Open 9 Market? 10 A Yes. 11 Q Is this -- is Defendant's Exhibit 40 an example of an 12 Open Market page? 13 A Yes, that's an example of an Open Market page. 14 Excuse me, could I have more water, please? 15 Q Oh, sure. 16 (Pause.) 17 Q Are you ready? 18 A I'm ready. 19 Q Professor Hoffman, you stated a few minutes ago in 20 testimony that Open Market has a, I believe I got this right, 21 a more detailed process for registering entries in their 22 directory, correct? 23 A Yes, that's correct. 24 Q Could you just explain for the Court what Exhibit 40 25 represents in terms of the commercial sites index listing 46 1 submission? 2 A Yes, this is -- 3 MR. HANSEN: Excuse me, I think counsel misspoke. 4 Do you mean to say Exhibit 41? 5 MR. BARON: No, I'm referring to Exhibit 40. 6 MR. HANSEN: Oh, all right. 7 JUDGE DALZELL: Which is headed "Open Market's 8 Commercial Sites Index," correct? 9 MR. BARON: Correct. 10 THE WITNESS: And then it says "Commercial Sites 11 Index Listing Submission." 12 JUDGE DALZELL: Right. 13 THE WITNESS: Yes, this is the page if you were to 14 go to the Open Market homepage or maybe someone told you this 15 URL directly and you entered it directly. But in any event 16 let's just say you found your way to this page deliberately 17 because you knew it existed and you wanted to register your 18 commercial site with Open Market. 19 You would have to go to this page, you would follow 20 the instructions on this page and, even though you can't see 21 it from this hard copy printing, it's a fillout form where 22 so, for example, see where it says "New Listing Update Old 23 Listing," those are choices and you would click on one of 24 those to indicate to Open Market whether you wanted to update 25 a listing you already had in their directory or you wanted to 47 1 enter a new listing. 2 JUDGE SLOVITER: Why do you say you can't see it? 3 Isn't it on the next page? 4 THE WITNESS: No, I mean you can't tell from this 5 hard copy printout -- 6 JUDGE SLOVITER: Oh, it's on this and the next page. 7 THE WITNESS: -- what it would really look like on 8 the World Wide Web on a computer because it would be 9 highlighted and it would be obvious that you would have, you 10 know, there would be an action required on your part which 11 would be to click. 12 Then if you saw where it says "Listing name," that 13 would be a text box. It hasn't come out here on the print, 14 on the printer, but there would be a -- that would be the 15 place where it would be obvious for you to type the name that 16 you wanted the listing to appear as in the directory, and so 17 on. 18 And so you would go through this process on line, 19 filling out this fillout form, it would be stored directly in 20 their database, they might do some processing of it and then 21 they would -- I do not know if Open Market screens these or 22 makes some determination on what's appropriate or not. I do 23 know that they have 22,000 or so listings and since that's 24 half the size of Yahoo's listings, I infer there may be some 25 sort of selection process involved or either that or not 48 1 everybody wants to list with Open Market. 2 BY MR. BARON: 3 Q And when someone wants to list with Open Market, then 4 individuals in cyberspace can search against the Open Market 5 directory of the sites that are listed? 6 A Yes, that's correct. 7 Q Could you turn to Exhibit 41? 8 A Yes, I see it. 9 Q Do you recall my showing you this page at your 10 deposition? 11 A Yes, I do. 12 Q Could you explain for the Court what this page 13 represents? 14 A Yes. This is -- this appears to represent someone typing 15 in on a previous page which asked you to search which gives 16 people the opportunity to search for particular listings in 17 the Open Market directory. Someone has performed a search of 18 listings that contain the word p-o-r-n or porn. And the 19 search appears to have returned 23 items. 20 Now, I'm going to assume that because they're from A 21 to Z that that's an exhaustive list of the sites on Open 22 Market out of the 22,000 or so sites that contain the word 23 porn and that's 23 items. 24 Q And could you turn to Defendant's Exhibit 42? 25 A Yes, I see that. 49 1 Q What would this represent, this page? 2 A Well, this appears to represent what would happen if the 3 person who had searched for porn clicked on the first entry 4 which was Triple A Adult Entertainment, then that would take 5 you directly to a page, it appears to be still on the Open 6 Market site which then gives you more information about the 7 Triple A Adult Entertainment commercial site and then 8 there's, that's obvious from underlining that that's a 9 Hypertext link, so if you then chose to go to the Triple A 10 Entertainment, Adult Entertainment site, you would click on 11 that link and then you would be what we call off site, you 12 would now be somewhere else in cyberspace. 13 Q But the point here is that the Triple A Adult 14 Entertainment site has essentially gone through a 15 registration process with the Open Market directory, correct? 16 A Yes, they have listed their business with the Open Market 17 commercial directory. 18 Q All right, thank you. Let me turn to a separate subject. 19 Is it -- is it your testimony, as you state in your 20 deposition, that there are approximately 12 to 15 million 21 subscribers to AOL, Compuserve and Prodigy? 22 A Yes, and all of the commercial on-line services, not just 23 the top three, because Microsoft Network is rapidly 24 approaching one million subscribers by itself. 25 Q You agree, do you not, that it is in the interest of the 50 1 marketplace to adopt parental controls? 2 A Yes, I do. 3 Q Could you turn to Exhibit 48 which I believe would be in 4 the second volume? 5 (Pause; discussion off the record.) 6 BY MR. BARON: 7 Q Do you recall my showing you this exhibit in your 8 deposition? 9 A Yes, I do. 10 Q Could you generally describe for the Court what it 11 represents in terms of a Web page? 12 A Yes, it's an advertisement for an adult bulletin board. 13 Q It appears to state that one calls a 900 number to get a 14 user name and a password and there will be a $20 charge on a 15 phone bill and then after you call that number -- 16 A Oh, right, yes, I'm sorry. This is the other one you 17 showed me. This is not an advertisement for an adult 18 bulletin board, this is a -- the homepage of a commercial Web 19 site that contains sexually explicit material and this is the 20 process by which they register you. You must, rather than 21 using a fillout form, you go off line with a telephone number 22 and give your credit card information. 23 Q Could you read for the Court in the small print what it 24 says, starting with the word "due"? 25 A "Due to the passage of the Telecommunication Act of 51 1 1995," -- which is wrong -- "which includes provisions 2 banning indecent material on the Internet, the material here 3 has been temporarily removed while we bring it into 4 compliance. The member area is not affected." 5 Q Do you have any idea what might have been on the site 6 prior to the words here? 7 A No, I have no idea. 8 Q Okay. It would have been a pornographic image? 9 A It could have been a -- 10 MR. HANSEN: Objection, she says she has no idea. 11 JUDGE DALZELL: Sustained. 12 BY MR. BARON: 13 Q Okay. Would you turn to Defendant's Exhibit 49? 14 You stated at your deposition on Monday that you 15 were generally familiar with a site called Bianca's Smut 16 Shack, correct? 17 A Yes, correct. 18 JUDGE DALZELL: Bianca's what? 19 MR. BARON: Smut Shack, S-m-u-t. 20 BY MR. BARON: 21 Q You would, turning from the material beyond the first 22 page, you would agree, would you not, that the text of the 23 materials on this site are sexually explicit? 24 A You mean in general? 25 Q The text of the various pages at the end of this exhibit, 52 1 correct? 2 A Yes. 3 Q Okay. Now, just concentrating on the first page of the 4 exhibit, you see where it's titled "The Rules of the Game?" 5 A Yes, I see that. 6 Q Would you read for the Court in the third paragraph, can 7 you read to the Court what the third paragraph states? 8 A The paragraph starting second? 9 Q Yes. 10 A "Second, Bianca Trol Productions recognizes its 11 responsibility under current U.S. law to take, 'in good 12 faith, reasonable, effective and appropriate actions under 13 the circumstances to restrict or prevent access by minors 14 to,' this site which may contain adult language and 15 situations. We are also taking, 'appropriate measures to 16 restrict minors from such communications, including any 17 method which is feasible under available technology.'" 18 Q Could you look at Point 2 which follows where it's 19 described as Technology Measure No. 1, and could you, after 20 you've had a moment to look at it, inform the Court what 21 Bianca is stating here? 22 A Well, the site is stating that there is a way to block 23 people from coming to the site by means of blocking the IP 24 addresses which represent this particular site, so that you 25 can block at the user site by saying the -- by not allowing 53 1 the browser to go to sites that have particular IP or 2 Internet protocol addresses which are those numerical 3 addresses you see there, the 204.62.13.6, that's the locate-- 4 that's the address of this particular site in cyberspace and 5 there's another address associated with it. And if I know 6 the address, I can block it so that my particular computer 7 could not go to that address. 8 Q You would agree, would you not, that Technology Measure 9 No. 2 is an effective measure with respect to blocking 10 individuals who access that ISP? 11 A It's -- I agree that it's an effective measure of 12 blocking particular computers or people's access who use 13 those computers to particular sites, yes. 14 Q Would you look at Technology Measure No. 2 which is 15 listed at Point 3? 16 A Yes. 17 Q And inform the Court what the site is instructing to do? 18 A Well, you can also do the reverse. If you give your IP 19 address, if I were to send my -- my address to this 20 particular site, then it would also block me that way. So I 21 would -- I could go there but it wouldn't let me in because 22 then it would know that I was coming in and say uh-oh, you 23 know, Professor Hoffman not allowed at this site, as 24 identified by my IP address on my computer. 25 Q All right, thank you. Your testimony and your 54 1 declaration-- that will be the end of the use of that -- your 2 testimony in your declaration is that the act in question 3 here, the Communications Decency Act, will have negative 4 consequences for the new medium of the Internet and 5 specifically the World Wide Web, correct? 6 A Correct. 7 Q You will -- you concede, will you not or you do concede, 8 do you not, that the exhibit that was 48 which was the 9 Cybersex City exhibit with the 1-900 number? 10 A Mm-hmm. 11 Q The fact that the material that's been removed with that 12 disclaimer about the Telecommunications Act, whatever that 13 material was, you would concede would you not that the 14 removal of that material does not have a profound adverse 15 consequence in terms of the growth of the Internet or the 16 ease of use of the World Wide Web, correct? 17 A In that particular instance on that particular site I 18 would concede that, yes. 19 Q You would also concede, would you not, Professor Hoffman, 20 that the site that's Bianca's Smut Shack's decision to 21 include a rules of the game homepage complete with tagging 22 and registration requirements as set forth in those two 23 technology measures will similarly not have a profound 24 adverse effect on the growth of the Web or the ease of use of 25 the Internet, correct? 55 1 A On that particular site, that's correct. 2 Q Could you explain for the Court what Anonymous Remailers 3 are? 4 A Yes, Anonymous Remailers and their -- and a related 5 service called Pseudonymity Servers are computer services 6 that privatize your identity in cyberspace. They allow 7 individuals to, for example, post content for example to a 8 Usenet News group or to send an E-mail without knowing the 9 individual's true identity. 10 The difference between an Anonymous Remailer and a 11 Pseudonymity Server is very important because an Anonymous 12 Remailer provides what we might consider to be true anonymity 13 to the individual because there would be no way to know on 14 separate instances who the person was who was making the post 15 or sending the E-mail. 16 But with a Pseudonymity Server, an individual can 17 have what we consider to be a persistent presence in 18 cyberspace, so you can have a pseudonym attached to your 19 postings or your E-mails, but your true identity is not 20 revealed. And these mechanisms allow people to communicate 21 in cyberspace without revealing their true identities. 22 Q I just have one question, Professor Hoffman, on this 23 topic. You have not done any study or survey to sample the 24 quantity or the amount of anonymous remailing on the 25 Internet, correct? 56 1 A That's correct. I think by definition it's a very 2 difficult problem to study because these are people who wish 3 to remain anonymous and the people who provide these services 4 wish to remain anonymous. 5 Q You would agree, Professor Hoffman, that the Alt Binary's 6 hierarchy of Usenet News groups contains pornographic 7 imagery, correct? 8 MR. HANSEN: Objection, I'm not sure the word 9 "pornographic" has any meaning in the legal meaning. 10 JUDGE DALZELL: Well, does it to you? 11 THE WITNESS: I agree it contains sexually explicit 12 material, yes. 13 JUDGE DALZELL: Okay, overruled. 14 BY MR. BARON: 15 Q You also agree, do you not, that pornographers are using 16 Usenet News groups to advertise, correct? 17 A Yes. But can I clarify that? 18 Q Sure. 19 A What I have seen on Usenet News groups is that operators 20 of adult bulletin boards are in some cases, although it's 21 sometimes difficult to tell because it could just as well be 22 individuals who have downloaded content and are re-posting it 23 on Usenet News, but there are cases of images from adult 24 bulletin boards which are re-posted on Usenet News groups and 25 there's some idea that the operators of the adult bulletin 57 1 boards are using this as a mechanism to advertise their 2 service. 3 Q Now, we've already gone over Paragraph 122 of your 4 declaration where you said that it is your, quote, 5 "impression," unquote, that there is a decreasing percentage 6 of sexually specific material in cyberspace as a proportion 7 of the total amount of packet traffic or hosts or however one 8 counts the Internet in terms of how big it is, correct? 9 A Well, I didn't, no, that's not correct. My declaration 10 doesn't say that. It says that it is my opinion based on my 11 experience and my research in this medium that when 12 considered as a percent of the total information, so I'm 13 thinking of it particularly in terms either of postings for 14 example on Usenet News groups or in terms of URL's, for 15 example, on that portion of the Internet known as the World 16 Wide Web that the amount of sexually explicit material 17 available is actually constant and so as a percent of total 18 is decreasing because the total amount of information on the 19 Internet is increasing at a very rapid rate. 20 JUDGE DALZELL: So it's that deduction is behind 21 Paragraph 122? 22 THE WITNESS: Yes, that's correct. 23 BY MR. BARON: 24 Q But you can't say, can you, Professor Hoffman, in terms 25 of packet traffic on the Internet whether the sexually 58 1 explicit material consists of 10,000 packets or a million 2 packets or a billion packets, correct? 3 A No, I can't say that, no one can say that. 4 Q You have given no absolute number in terms of what the 5 quantum of pornography or sexually explicit material is in 6 cyberspace, correct? 7 A Correct. 8 Q Could you turn to Paragraph 129 of your declaration? 9 You state that digital Alta Vista's search engine 10 currently indexes over 21 million unique URL's and 10 billion 11 words on the World Wide Web? 12 A Correct, except now it's -- I just checked yesterday, 13 it's now 22 million unique URL's and 11 million words -- 11 14 billion words, I'm sorry. 15 Q All right. Now, as a hypothetical if just one percent of 16 cyberspace on the Web contains sexually explicit material, 17 that would translate, under your new numbers, as 220,000 18 unique URL's and 110 million words by your calculation, 19 correct? It's one percent of these figures. 20 A If you assumed it was distributed uniformly that would be 21 a correct mathematical calculation, yes. 22 Q Would you consider that to be a large amount under that 23 hypothetical? 24 A I would not consider it to be a large amount as percent 25 of total. I think it's very difficult to make absolute 59 1 statements about numbers unless they are referenced in a 2 framework. 3 Q Well, you've testified that the Web is growing 4 phenomenally, right? 5 A The Web as measured in the number of servers is growing, 6 is doubling approximately every two and a half months. The 7 Internet as measured in the number of hosts computers 8 connected to it is doubling annually and has been so since 9 about 1981 or 1982. So that we consider these to be 10 exponential and phenomenal rates of growth, yes. 11 Q Well, given that phenomenal growth, just to be clear 12 about what your declaration is saying, a number can grow in 13 absolute numerical terms but still represent a smaller 14 percentage of a larger total if that total is growing 15 phenomenally, correct? 16 A I don't understand what you just said. 17 JUDGE SLOVITER: You can make that argument. 18 JUDGE DALZELL: I think we understand the basic laws 19 of mathematics. 20 MR. BARON: All right, I have no more questions, 21 your Honors. 22 JUDGE SLOVITER: Okay, this is a good time to take 23 the ten-minute break and it will be a ten-minute break. 24 THE COURT CLERK: All right, please. 25 (Court in recess; 10:45 to 11:00 o'clock a.m.) 60 1 JUDGE SLOVITER: Okay, we'll hear the plaintiffs on 2 redirect. 3 MR. HANSEN: Thank you, your Honor. 4 REDIRECT EXAMINATION 5 BY MR. HANSEN: 6 Q Professor Hoffman, you had some discussion with the 7 Government concerning the definition of hits and unique 8 domains of methods of measuring the number of people who are 9 actually traveling in cyberspace. Does the -- would you 10 explain again what a unique domain is? 11 A Yes. A unique domain is, very simply stated, the address 12 of the computer. Every computer has associated with it a 13 particular address and that address can be in words, so, for 14 example, gateway.senate.gov, or it can be in numbers, the 15 numerical address or sometimes called the IP address, which 16 stands for Internet protocol. However, the situation becomes 17 a little bit more confusing or complicated, because there are 18 various types of systems that computers can be assigned 19 addresses, which makes it very difficult to know what -- 20 which particular computer might be coming to your site. So, 21 for example the -- let's just take an example of AOL, the 22 commercial on-line service which is a gateway to the 23 Internet, the address for AOL is aol.com, that's a domain 24 name, and it has an IP address associated with it, which I 25 don't know what that is. However, AOL has a series of 61 1 machines that it uses for its users to get onto the Internet 2 and they might be called, for example, aol1.aol.com, 3 aol2.aol.com, and so on. But AOL has about five million 4 users, but AOL does not have five million unique domains, it 5 only has a much smaller number. So, for example, on the 6 Project 2000 site we get many visits from AOL presumably, but 7 they only -- from people who use AOL as their gateway to surf 8 the net, but it shows up in our server log as, say, 9 aol1.aol.com and that's a hit, a visit. What I don't know is 10 how many people were associated with that domain, because 11 when I count -- when I have a program that runs and goes 12 through the server log and counts up how many times 13 AOL1.AOL.com came I have no idea who it was behind that 14 machine or how many. So, it could have been a child, it 15 could have been an adult, it could have been the same adult 16 on repeated occasions, because there might be ten listings in 17 the server log that say aol1.aol.com coming in, say, at 10:00 18 a.m., and then maybe at noon aol1.aol.com came in again, and 19 then at 4:00 p.m. in the log it might show aol1.aol.com 20 again, but I would have no way of knowing who it was or how 21 -- or anything. 22 Q So, when you try to determine the number of unique 23 domains that have visited your Web site would that 24 underestimate or overestimate the number of actual people who 25 have come and looked at your Web site? 62 1 A Well, it's clearly a lower bound, because what it really 2 estimates is the number of unique computers that came to the 3 site, it does not give anything but a lower bound on how many 4 -- on the minimum number of people who could have come. And 5 in fact that's one of the impetuses for our research on 6 counting the number of users, because up until the time that 7 we started our research on Internet measurement people were 8 trying to estimate the number of computer users worldwide by 9 counting the number of machines connected to the Internet and 10 multiplying by a number. So, for example, the rule of thumb 11 factor or the number was some number between five and ten, 12 because the conventional wisdom was many years ago or even 13 five years ago that there were about five to ten people 14 associated with each computer domain, but over time that's 15 clearly become untrue because -- for a number of reasons; 16 one, because of hosts like AOL, which have five million users 17 but only a very small and finite number of domains; hosts 18 like Compuserve, compuserve.com, for example; and through a 19 procedure called, for example, dynamic allocations, so at 20 Universities and other businesses IP addresses are assigned 21 dynamically on the moment you log in and those numbers can 22 change and are not necessarily the same number associated 23 with the same computer -- 24 JUDGE DALZELL: When you say dynamically, a word you 25 use fairly frequently in your declaration, what do you mean? 63 1 THE WITNESS: I mean at that moment, in real time, 2 so, in response to something happening in the environment. 3 In this context of dynamic allocation of IP addresses, that 4 means at the moment that someone needs to connect to the 5 Internet from, say, a computer in a computer lab at a 6 university that computer is assigned a free domain name and 7 IP address at that moment -- 8 JUDGE DALZELL: On the spot? 9 THE WITNESS: -- on the spot, right. So, dynamic 10 means in real time something is happening. 11 JUDGE SLOVITER: And does the number come back, is 12 it used and then never used again? 13 THE WITNESS: No, it could be used again, but it 14 might be by another machine in the lab on another day, 15 another time, another moment, whatever. So, the best you can 16 do if you're trying to count -- and the reason obviously I'm 17 interested in this is from a commercial perspective. So, 18 it's very important to get as good a count as possible of the 19 people in front of the machines, not the machines. And, so, 20 we have tried to move away or make arguments that we must 21 move away from counts of host and then multiplying by a 22 factor of five or ten, which is now meaningless because some 23 hosts are single-user hosts. In other words, my machine, 24 collette.ogsm.vanderbilt.edu just has me on it, so that's 25 called a single-host machine or a single-user machine, but 64 1 other hosts, as I've already said, have thousands of people 2 associated with them. So, what we have to do is count the 3 users. So, the only way to know how many people are coming 4 to your site and, particularly because of other problems like 5 the spiders and Bots that go out searching and hit the site 6 and count as hits, the only way to know is to count the 7 people on the other side. 8 BY MR. HANSEN: 9 Q And if we took your computer and ran the number of hits 10 that your computer received on a particular day, and then 11 also ran the number of unique domains that had been to your 12 site on a particular day, the number of actual human beings 13 would likely be somewhere between those two numbers? 14 A Right, but in my particular case, on our server, much 15 closer to the number of unique domains and that's because we 16 do not serve, you know, tens of thousands of pages, we're a 17 research center site and we put up our research papers and we 18 have thousands of pages. But a site like Pathfinder, for 19 example, Time Warner's site, which consists of many of its 20 on-line magazines and lots of content, they report that they 21 get like two million hits a week. So that's clearly a 22 meaningless number from a commercial perspective, because all 23 it says is that many files and pictures and images are being 24 served up, but says very little about who is coming, how many 25 are coming, how often they're coming and to which pages 65 1 they're coming. 2 JUDGE DALZELL: And how long they're on? 3 THE WITNESS: And -- exactly. Duration, we believe, 4 is one of the critical variables for measuring the value of a 5 visit to a Web site in this environment and that hits are 6 meaningless, unique domains are a lower bound, but nothing 7 else and just useful as a starting point, and that the key 8 issues are visits and behavior in a network navigation 9 context, which includes duration in the Web site. 10 BY MR. HANSEN: 11 Q Professor Hoffman, are hits meaningless in this context: 12 If you are at your Web site in Vanderbilt required to screen 13 every person who comes to your site and, indeed, every one of 14 the thousands -- each time anyone goes to any one of the 15 thousands of pages on your site and determine whether that 16 person is above the age of 18 or under the age of 18, is hits 17 a meaningless number in that context? 18 A Completely meaningless. Hits, even unique domains are 19 just completely meaningless, there is no way to determine 20 from the server log file, which contains information on the 21 hits and the unique domains, who is coming to my Web site. 22 Q But you would nevertheless have to screen the -- the 23 number of times you would have to check to see if someone is 24 18 or not 18 would be roughly measured by the number of hits, 25 the number of actual times you would have to look and see is 66 1 that person 18 or not? 2 A Yes, roughly speaking, by some -- divided by some factor 3 for how many hits were on a particular page, but, yes, if I - 4 - let's just say I have a thousand pages, for sake of 5 argument, on the Project 2000 site, every single one of those 6 pages of those 1,000 pages would have to have some sort of 7 screening device, otherwise I would not be able to prevent 8 them from coming to those pages or determining who was coming 9 to those pages. 10 Q When you run the unique domain list of the number of 11 unique domains that have come to your site on a particular 12 day does it also show the country from which someone has come 13 to access your site? 14 A Well, it could, it's -- it could in the sense that unique 15 domains have identifiers associated with them. To understand 16 this idea we can introduce the notion of what we'll call the 17 top-level domain. So, again, to use my example, 18 collette.ogsm.vanderbilt.edu, that's my entire address or 19 host name or domain name, the top level is edu and that 20 identifies my machine as coming from an educational 21 institution, because it has the .edu address. Now, the most 22 common addresses in cyberspace are the .com for commercial, 23 that's the top level. So, aol.com or timewarner.com or 24 openmarket.com and so on. Edu is the second most common, 25 followed by .net, which represent Internet service providers 67 1 and other gateways to the Internet. There's .org for 2 nonprofit organizations, .gov, for government organizations. 3 So, the domain name here almost certainly has a .gov at the 4 end of it, and so on. So, it is -- and then there are many 5 other domain names, like .ca at the top would represent 6 Canada, .es would represent Estonia and so on. So, in theory 7 it is possible to run a program and count, using a table for 8 lookup, say, which would say, well, I know how many came from 9 Spain, I know how many came from Finland, I know how many 10 came from the Netherlands and so on, because in the 11 Netherlands they usually use a .nl as the top-level domain. 12 So, you can get -- but that only gives you an underestimate, 13 because increasingly the .com address is being used abroad 14 and that didn't used to be the case, but is now increasingly 15 the case, and the .com host is about 26 percent of all hosts 16 on the Internet. So, right now the Internet has -- it was 17 just recently measured in January, it's measured every six 18 months by Mark Lottor, and his latest measurements show that 19 the Internet has 9.47 million hosts, about, give or take. Of 20 those nine and a half million, let's round it for ease of 21 discussion, about 26 percent are .com, about 19 percent are 22 .edu, and we know that -- so that the .coms represent not 23 just U.S. commercial enterprise, but also overseas commercial 24 enterprise. 25 Q And using this system -- 68 1 JUDGE DALZELL: Excuse me, what percentage are .org? 2 THE WITNESS: I think it's about three percent, a 3 little less than three percent. The .net, .org and .gov are 4 all running a little below three percent. If we look at a 5 host distribution by country, though, that was in -- the 6 latest measurements for that were taken in July of 1995. So, 7 we don't have the figures for Mr. Lottor's most recent 8 calculations, because they haven't been done yet; however, 9 those distributions show that 60 percent of hosts were 10 thought to originate from the United States and 40 percent of 11 those hosts, and in July, '95 the hosts were running a little 12 over six and a half million, now it's almost ten million, so 13 it was about 60-40 U.S., non-U.S., and the distribution -- I 14 don't remember exactly, it was United States followed by -- 15 JUDGE DALZELL: And the source you're citing is 16 what? 17 JUDGE SLOVITER: Lottor. 18 JUDGE DALZELL: Lottor? 19 THE WITNESS: Lottor, L-o-t-t-o-r, Mark Lottor, he 20 runs a company called Network Wizards and as a service to the 21 Internet community he runs a program which counts the number 22 of hosts on the computer every six months. I don't -- I 23 cannot find my... oh, here it is, I found it. My listing is 24 United States had a little over 60 percent, followed by 25 Germany, United Kingdom, Canada, Australia, Japan, the 69 1 Netherlands, France, Finland and Sweden, and those are the 2 top ten. Now, the distribution now is thought to be 60-40, 3 even though we don't know yet, but we believe it's moving 4 towards 60-40 and it was at 64-36. So, it's clearly moving 5 toward parody and that seems -- is also borne out by counting 6 the number of networks connected to the Internet, which is 7 now moving toward a parody distribution of about 50-50, 8 meaning about 50 percent of networks connected to the net are 9 in the U.S. and about 50 percent of networks connected to the 10 Internet are non-U.S. 11 JUDGE DALZELL: Is that also Mr. Lottor's work? 12 THE WITNESS: That is also Mr. Lottor's work, with 13 also John Quarterman, who provided some of these statistics 14 based on reanalyses of Mr. Lottor's data. 15 BY MR. HANSEN: 16 Q Professor Hoffman, you were present in court yesterday 17 when Ms. Duvall did her demonstration? 18 A Yes. 19 Q And you saw her take us all to a site that was in London, 20 is that correct? 21 A Yes. 22 Q Is it fair to say that it takes just as many clicks to go 23 a site in London as it does to go to a site in Philadelphia? 24 A Yes, or just as few, as the case may be. 25 Q Now, I'd like you to -- I'd like to refer you back to 70 1 Defendant's Exhibit 13-A, which was the Little Women search. 2 (Pause.) 3 A Yes. 4 Q Now, the particular entry on that page that you were 5 questioned about, the see-hot-pictures-of-naked-women page, 6 do you know whether that particular site if I clicked on it 7 would be blocked by Surf Watch? 8 A I don't know. 9 Q Let's look at Defendant's Exhibit 49, which was the -- 10 which was Bianca's site which you were questioned about. 11 (Pause.) 12 A Yes. 13 Q Now, Mr. Baron asked you to read Technology Measures 1 14 and 2, he didn't ask you to read Technology Measure 3, would 15 you read that? It's Number 4, but Technology Measure 3, 16 would you read that one, please? 17 A Yes, Technology Measure Number 3: "We heartily support 18 all self-imposed Internet content selection solutions, such 19 as Surf Watch and PICS." 20 Q Now, the three technology solutions that are suggested on 21 this site, do they have anything in common? 22 A Yes, they're all user-oriented solutions, because their 23 activity and control all would reside in the hands of the 24 user or the people who are accessing the content or 25 interested in accessing the content. 71 1 Q Does this site suggest any method by which the content 2 provider could insure that no one under the age of 18 was 3 visiting their site? 4 A No, and I believe that's because no such solutions are 5 possible. And in fact I think it's instructive that they are 6 requiring you to tell them when you don't wish to be able to 7 go there, because that's the only way that they can know is 8 if you tell them. 9 Q Thank you. 10 MR. HANSEN: Your Honors, given the objection that 11 was raised at the beginning of this, I just want to make sure 12 that her declaration went in as her direct testimony? 13 JUDGE DALZELL: Absolutely. 14 JUDGE SLOVITER: I think so -- 15 MR. HANSEN: Okay, thank you. 16 JUDGE SLOVITER: -- if it didn't, it does now. 17 MR. HANSEN: Thank you, your Honor. 18 JUDGE SLOVITER: Do you have any -- 19 MR. BARON: Subject to our objection, your Honor. 20 JUDGE SLOVITER: Pardon? 21 MR. BARON: Subject to our objection on the 22 paragraph. 23 JUDGE DALZELL: Right. 24 JUDGE SLOVITER: All right. 25 JUDGE DALZELL: Do you have any recross? 72 1 MR. BARON: No, your Honor. 2 JUDGE SLOVITER: Okay. Judge Buckwalter? 3 JUDGE BUCKWALTER: I just have a very few questions. 4 Throughout your -- well, not throughout your declaration, but 5 in your declaration, as well as others, there's reference to 6 the Internet as being a truly democratic information flow and 7 I think you say in 24 a democratic form of communication, 8 what do you mean by that when you say that? 9 THE WITNESS: I mean that the Internet, particularly 10 as compared to traditional communication media and even some 11 other forms of new media, like other interactive media, is 12 truly a revolution in the sense that for the first time in 13 the history of communication media users or individuals can 14 provide content to the medium. So, in addition to accessing 15 information or content they can also provide information to 16 the medium. And the other unique feature is coupled with 17 this idea of interactivity, so that not only can you and I 18 communicate with each other through the medium, something we 19 call person interaction, but I can communicate directly with 20 the medium, something we call machine interactivity, and 21 that's the idea where I can both access content and provide 22 it. So, for the first time there is an opportunity for all 23 people or any person who has access to the medium to put 24 their opinion on the medium or in essence to have a voice in 25 society as represented by the Internet. 73 1 JUDGE BUCKWALTER: Without any government 2 interference, does that -- 3 THE WITNESS: Without any -- 4 JUDGE BUCKWALTER: -- have something to do with your 5 the -- the -- 6 THE WITNESS: No, not really. No, I meant it in the 7 sense that there was no -- no, I meant it more that the 8 medium does not discriminate on the basis of the individual's 9 either accessing or providing the content. So, for example, 10 if I put a site up, which I did, the Project 2000 site, my 11 site has just as much chance or is just as likely to be 12 visited by people as a site by a communications conglomerate 13 like Time Warner, because there is nothing inherent in the 14 medium keeping someone from coming to Project 2000, there are 15 no barriers, there are no gateways, they don't have to pay to 16 get there -- 17 JUDGE BUCKWALTER: But there is a -- there is a Big 18 Brother overlooking the media -- or overlooking the Internet 19 in a sense, isn't there? If it's not the government it's the 20 people who for example have the -- in these directories 21 you're talking about who make choices as to what goes in the 22 directory? 23 THE WITNESS: Well, I don't look at that -- I don't 24 think of that as Big Brother -- 25 JUDGE BUCKWALTER: Well, no, I mean maybe not as Big 74 1 Brother, but there's somebody out there. And on the on-line 2 discussion forums, for example, isn't there somebody who 3 steers the discussion in some way? 4 THE WITNESS: No, not necessarily. On UseNet news 5 groups, there are two types of UseNet news groups, if that's 6 what you're referring to? 7 JUDGE BUCKWALTER: Yeah, I mean -- 8 THE WITNESS: And those -- there are moderated -- 9 JUDGE BUCKWALTER: -- on some discussion forums 10 isn't there somebody who steers and focuses the discussion? 11 THE WITNESS: Well, it depends what you mean by -- 12 no, I am not aware of anyone -- 13 JUDGE BUCKWALTER: It's not an open -- 14 THE WITNESS: -- on un-moderated discussion lists 15 like UseNet news groups, for example, who steers or focuses 16 the discussion. The people themselves determine the content 17 and the focus and the positioning of the discussion, but 18 there is no person on the shoulder of the UseNet news group 19 if it's un-moderated saying now we will talk about X and 20 tomorrow we will talk about Y. 21 JUDGE BUCKWALTER: I only raise that question 22 because I was surfing or browsing magazines, which is what we 23 used to do -- 24 (Laughter.) 25 JUDGE BUCKWALTER: -- and The Atlantic magazine, in 75 1 this month's article -- that's on something called paper -- 2 (Laughter.) 3 JUDGE BUCKWALTER: -- raised this, suggesting that 4 the most popular on-line discussion forums tend to be not 5 purely democratic by quasi-authoritarian in spirit, with an 6 active systems operator who both steers and stimulates 7 debate. 8 JUDGE SLOVITER: Maybe you put on the record -- 9 JUDGE BUCKWALTER: On the record, that's -- 10 JUDGE SLOVITER: -- where you're -- 11 JUDGE BUCKWALTER: -- the -- that's attributed to 12 James Fowell (ph.), the Washington editor of The Atlantic 13 magazine and it's their April issue. 14 JUDGE SLOVITER: Okay. 15 JUDGE BUCKWALTER: And his position was that for the 16 time being that the editors and other data winnowers are 17 becoming important in this whole scheme of things, because 18 they do actually overlook the system in some way and -- 19 THE WITNESS: Well, there is no question that there 20 are a number of gatekeepers, if you want to think of it from 21 that perspective. 22 JUDGE BUCKWALTER: Gatekeepers, okay. Well, that's 23 the terminology, I -- 24 THE WITNESS: However, they are definitely not, at 25 least from my perspective -- or have a Big Brother component 76 1 to them. And particularly on the UseNet news groups, just to 2 use that example, it really -- if they're not moderated 3 people are free to say and post and do what they like, if 4 other people don't like it then they will respond by saying, 5 I don't like that, a process we sometimes refer to as 6 flaming. But the whole behavior on the group is very organic 7 with no one necessarily determining now we will do this and 8 then we will do that. 9 JUDGE SLOVITER: What does organic mean in that 10 context? 11 THE WITNESS: Well, it flows -- it evolves 12 naturally, there is no one in charge of the process, it is 13 allowed to grow and flow naturally as events unfold. 14 JUDGE BUCKWALTER: Like a conversation at a cocktail 15 party. 16 THE WITNESS: Exactly. Now, there are 17 gatekeepers -- 18 JUDGE BUCKWALTER: But it's not that exactly though, 19 is it? 20 THE WITNESS: Well, I think it's more like that -- 21 JUDGE BUCKWALTER: Well, okay, we won't debate that. 22 THE WITNESS: -- than like the way that you 23 proposed, because the Internet is composed of -- for example, 24 on UseNet news there are approximately 15,000 UseNet news 25 groups and, by and large, I would say that the behavior is 77 1 very open and democratic with access to all, you can say what 2 you like, other people can respond in kind or not, you are 3 not required to respond, and really there is no one in charge 4 in a broader sense. The same is true on the Web, there are 5 many indexes, there are not just one index and that's it and 6 that's the only one you can list in and if you don't list 7 there, forget it, you're no one. 8 JUDGE BUCKWALTER: I understand the point you're 9 trying to make. 10 JUDGE SLOVITER: Did you have any more questions? 11 JUDGE BUCKWALTER: No, I think that's all then. 12 JUDGE SLOVITER: Judge Dalzell? 13 JUDGE DALZELL: I have a number of questions. First 14 of all, these -- this hierarchy you referred to, the point 15 that .com means commercial, that .edu means education, these 16 are self-given names? 17 THE WITNESS: No, they are -- there is a 18 registration process that you have to go through for 19 addresses -- 20 JUDGE DALZELL: That's what I thought. 21 THE WITNESS: -- through an organization called 22 Internick (ph.) and domains have to be registered so that 23 they can be connected to the Internet. 24 JUDGE DALZELL: And also so that they're not 25 duplicated? 78 1 THE WITNESS: Yes, that's the most important point, 2 so that you have a unique identifier in cyberspace for your 3 host computer to be connected to the Internet. 4 JUDGE DALZELL: And so Internick, somebody at 5 Internick makes a judgment, correct? For example, if my 6 daughter wanted to register and say I'm an edu somebody there 7 would say that's ridiculous, you're just a kid? 8 THE WITNESS: Yes, there are specific rules for -- 9 which are fairly broadly defined, but rules nonetheless 10 governing the use of the top-level domains, particular for 11 .com, .edu, .net, .org and .gov. I think there are other 12 organizations besides Internick that register and the rules 13 are different, particularly for some of the European or 14 overseas addresses, because it could also be the case that it 15 might say .es, which stands for Estonia, but it's not 16 necessarily the case that those hosts originate in Estonia. 17 So, it's very complicated. 18 JUDGE DALZELL: Okay. Referring now to your 19 declaration, in Paragraph 31, Footnote 1 there has a number 20 of statistics and the footnote begins by saying, "The most 21 recent figures, decisionmakers are using for business 22 planning and research purposes," do you see that? 23 THE WITNESS: Yes. 24 JUDGE DALZELL: And then it makes reference to the 25 "so-called total core economy for electronic commerce on the 79 1 Internet will approach $45.8 billion by the year 2000," et 2 cetera. 3 THE WITNESS: Mm-hmm, yes. 4 JUDGE DALZELL: Where do those numbers come from? 5 THE WITNESS: The first source -- these all come 6 from analysts -- 7 JUDGE DALZELL: Pardon me? 8 THE WITNESS: Analysts. 9 JUDGE DALZELL: Okay, Wall Street analysts? 10 THE WITNESS: Yes. 11 JUDGE DALZELL: Okay. 12 THE WITNESS: Or research analysts who specialize in 13 the Internet. I put them here just to -- first of all to 14 show the enormous range in the estimates, from very small to 15 very large, I think by and large reflecting that we really 16 don't know what's going to happen in the long run. The first 17 estimate comes from Forrester Research, the second estimate I 18 believe comes from Alex Brown and Sons, and then the third 19 one comes from Hamberg & Quist (ph.), and these are different 20 analysts who are involved in assessing the business 21 opportunity for the Internet. 22 JUDGE DALZELL: Who are advising -- for the purposes 23 of advising investors on where to put their money? 24 THE WITNESS: As one example, yes. In the case of 25 Forrester Research no, they do -- their clients, they do 80 1 research for their clients on, say, strategic opportunities 2 on the Internet, in which case it's still important to know 3 from an investment perspective, say if I wish to open up a 4 commercial enterprise on line, you know, what -- you know, 5 how much money could I make, for example. 6 JUDGE DALZELL: Okay. Page 10, Paragraph 40, just 7 so I'm absolutely sure I understand what you're saying here, 8 when you say, and now I'm quoting, "because network 9 navigation is nonlinear," when you use the word nonlinear 10 there what exactly do you mean? 11 THE WITNESS: Exactly what I mean is that the 12 navigation process is not strict ordered and sequential. So, 13 for example, it's not a rough linear menu, meaning things 14 fall in a line in order, first one, then you must go to two, 15 then you must go to three, then you must go to four, as if 16 they were literally ordered on a line and I had to proceed in 17 that fashion. The network navigation experience on the 18 Worldwide Web is nonlinear in the sense that either I might 19 be presented with a set of choices on a Web page which are a 20 list, but I can go anywhere on the list I want, I don't have 21 to go in order, or, as increasingly is the case, they might 22 be presented to me graphically in means of different images 23 or maps or pictures, and I simply move my mouse and point to 24 the particular area on the map on which I want to go and then 25 I'm off. 81 1 JUDGE DALZELL: All right, that's very helpful, 2 thank you. You also say on Page 21 in Paragraph 93, you make 3 what seems to me to be an extraordinary statement and I just 4 want to draw you out on it a little bit. You referred to the 5 -- I assume the Internet and the capacity for many-to-many 6 decentralized communication at -- 7 THE WITNESS: I'm sorry, would you repeat the 8 paragraph, please? 9 JUDGE DALZELL: 93. 10 THE WITNESS: Yes. 11 JUDGE DALZELL: You refer to it as, quote, "the most 12 important innovation to human society since the development 13 of the printing press," close-quote. Now, that's a pretty 14 extravagant statement, wouldn't you agree? 15 THE WITNESS: I do -- yes, but I do believe -- 16 JUDGE DALZELL: But do you stand by it, or is it 17 just -- 18 THE WITNESS: Yes, I believe that the Internet is 19 the most important communications innovation to human society 20 since the development of the printing press. So -- 21 JUDGE DALZELL: Because? 22 THE WITNESS: Because it allows for -- because of 23 it's many-to-many nature it allows for a level of 24 communication and interactivity among human beings which is 25 unprecedented in our society, and it also allows for 82 1 individuals in our society to have the opportunity to 2 contribute information in a mechanism that was never before 3 possible. 4 JUDGE DALZELL: All right. In Paragraph 101 on Page 5 22 you make the statement, "The act will have a negative 6 impact on commercialization, because many providers will 7 either exit the market or simply never enter." I'm not quite 8 sure why you say that. 9 THE WITNESS: Well, I believe there is already a lot 10 of evidence that the act will have negative consequences on 11 commercialization of the Internet. 12 JUDGE DALZELL: What evidence are you aware of in 13 your area of expertise? 14 THE WITNESS: From commercial providers and other 15 people who are considering becoming commercial providers who 16 are very concerned about the impact of the act either on 17 their business or on potential for their business. And -- 18 JUDGE DALZELL: How do you know that? 19 THE WITNESS: How do I know -- 20 JUDGE DALZELL: How do you know that they're 21 concerned? 22 THE WITNESS: Because they have told me. 23 JUDGE DALZELL: Okay. And they have told you that 24 they haven't entered the business or -- 25 THE WITNESS: They have told me that they're 83 1 considering -- I have had conversations with providers who 2 are considering exiting the business, providers who already 3 have, for example, removed material because they are 4 uncertain of its impact on people, and people who were 5 thinking of getting on line and are now very concerned. For 6 example, women who are considering getting into commercial 7 enterprises. I participated in a forum on Compuserve in a 8 section devoted to women and business, and I was presented as 9 an expert that the women could interact with -- or men too, 10 but it largely drew women who were very interested in 11 starting up enterprises that in some way involved the 12 Internet. And for women the Internet can represent a very 13 interesting business opportunity because it presents the 14 potential to work at home, for example, so you could still be 15 involved in the rearing of your children and you could still 16 potentially run a very profitable business yet out of your 17 house, which is another example of how it's democratic 18 because the entry barriers are very low, you don't need a lot 19 of capital investment in order to set up a site on the 20 Worldwide Web. However, the women are very concerned about 21 not only the technical issues involved or some of the more 22 maybe conceptual issues with how would I use this medium, but 23 also the legal issues of what will it mean for me, this is 24 now too complicated, I won't be able to figure it out, you 25 know, I'm just not going to get involved in this. And, so, I 84 1 do see in my work an enormous amount of concern on the part 2 of providers or potential providers, and in fact I would 3 suggest that the concern is even more potent for the small 4 providers. And, so, from the perspective of, say, the small 5 business or an individual business person or what we might 6 refer to as a mom-and-pop that the fear is very real. It 7 might be less of a concern for Time Warner who may feel, oh, 8 well, we will have the legal resources to deal with these 9 issues as they arise, but for small providers that's not the 10 case. And, so, in that sense the democratic, open, low- 11 barrier nature of the net becomes at risk. 12 JUDGE DALZELL: Okay. And lastly, just to make sure 13 I understand your testimony, Paragraphs 107 through 111, the 14 figures in those paragraphs, do they all come from Mr. 15 Lottor? 16 THE WITNESS: No, they come from a number of 17 different sources. 18 JUDGE DALZELL: All right, could you briefly 19 summarize for us where they come from? 20 THE WITNESS: Yes. The source in Paragraph 107 -- 21 well, actually I should clarify that most of these numbers if 22 we were to trace them back come from Mark Lottor's analysis 23 of host counts on the Worldwide Web, the data are then 24 reanalyzed by primarily two different individuals, the first 25 individual is Tony Rutkowski, he was -- 85 1 JUDGE DALZELL: Could you spell that, please? 2 THE WITNESS: Yes, R-u-t-k-o-w-s-k-i. He was 3 formerly the director of the Internet Society and he is now 4 with General Magic, a software company in California. And 5 Mr. Rutkowski performs reinterpretations or reanalyses or re- 6 parsings of Mr. Lottor's data, which is just presented in a 7 tabular form, it is not particularly interesting from a 8 commercial perspective. And, so, these data come from him or 9 from Mr. Quarterman, who runs a strategic consulting firm for 10 Internet use in Austin and also performs reanalyses for 11 strategic purposes. 12 JUDGE DALZELL: Now, are those in articles that have 13 been published? 14 THE WITNESS: No, they're on the Internet, they are 15 not in -- do not appear in peer-reviewed journals. These 16 numbers change the next day. 17 JUDGE DALZELL: Okay, thank you. 18 JUDGE SLOVITER: Okay. Dr. Hoffman, do the -- let 19 me take you to the concept of flow that you talk about in 20 your declaration and a little bit in your examination here 21 today. Do the experts in the field of psychology accept the 22 concept of flow? In other words, is it a recognized concept 23 by respected scientists in the field? I'm not sure that's 24 exactly the Daubert standard, but we'll -- 25 THE WITNESS: Absolutely, the answer is yes. The 86 1 concept was developed by a psychologist, Mahayli Gezens (ph.) 2 Mahayli, and he has done some work on his own, with his wife 3 and many other co-authors, all of it published in peer- 4 reviewed, refereed scholarly journals in the psychological 5 literature. And he has actually written several popular 6 books on the topic, one of the best known is Flow: The 7 Psychology of Optimal Experience, which is a book not exactly 8 for the lay person, but more popular than his other scholarly 9 work. He has developed the concept in a very generic 10 context, in other words, that flow is a construct that 11 describes people's experiences in situations I described 12 previously, for example playing chess, rock climbing, 13 dancing, things of that nature. Additionally, the concept 14 has achieved recognition in the organizational studies 15 literature by workers who are studying human-computer 16 interaction and believe that the concept also has merit and 17 utility there. So, for -- 18 JUDGE SLOVITER: Well, was -- then is this concept 19 of flow as related to this interactive computer relationship, 20 is that also accepted in peer-review articles? 21 THE WITNESS: Well, yes, I'm happy to say now that 22 it is, because that is our concept and our paper on that 23 topic will appear in July in the Journal of Marketing, which 24 is the top journal in the marketing field and is peer- 25 reviewed, refereed and double-blind. 87 1 JUDGE SLOVITER: All right, but if you remove the 2 concept of flow or you set it aside and this state called the 3 pleasure of intrinsically motivated experiential flow state, 4 all of which I gather means that people feel good -- 5 THE WITNESS: Right. 6 JUDGE SLOVITER: -- when they use a computer, so 7 that -- when it goes back and forth, you know -- 8 THE WITNESS: Yes -- or -- well, yes. 9 JUDGE SLOVITER: Okay. But if you set that concept 10 aside at the moment would you still reach the bottom line, 11 which I gather is the bottom line of some of your 12 declaration, that it's important for users to be able to jump 13 from hypertext link -- one hypertext link to another in a 14 seamless fashion because it facilitates the use of the 15 Internet or Worldwide Web as a goal-directed approach, by 16 which I understand you are saying that this is a way of 17 getting information, if you want information, it's the same 18 as going to a library; a different method of going, but it's 19 still important because it facilitates that kind of research, 20 let us say. Is that basically what it comes down to? 21 THE WITNESS: Yes, that's -- no, that's exactly 22 correct because, as we state in our research papers, the flow 23 experience is not necessarily achievable by every person who 24 gets on line -- 25 JUDGE SLOVITER: I can understand that. 88 1 (Laughter.) 2 JUDGE SLOVITER: I mean, there might be -- I assume 3 there might be frustrations as well. 4 THE WITNESS: Yes -- no, in fact we -- the reason 5 that the flow concept is of interest is because it allows us 6 to study precisely frustrations and the things that might 7 keep people from having a good time or enjoying themselves. 8 Nevertheless, whether we could get into flow or not on any 9 particular occasion or whether even I could ever get into 10 flow, because we believe some people will never get there, 11 the concept of network -- 12 JUDGE SLOVITER: It's like nirvana maybe. 13 (Laughter.) 14 THE WITNESS: Well, it's related to peak experience, 15 but not the same, yes. Whether we -- 16 JUDGE SLOVITER: But I'm more interested in the 17 concept of getting information, which I think -- 18 THE WITNESS: Yes, we -- I completely believe that 19 the -- 20 JUDGE SLOVITER: -- is an entirely different 21 concept. 22 THE WITNESS: Absolutely, network navigation, the 23 process exists regardless of whether you will achieve flow or 24 be in the flow state or not during that process. And network 25 navigation is the process of self movement or direction 89 1 through cyberspace and that process is impeded or is 2 potentially impeded by the idea of a necessity to register or 3 to say, here I am now at yet another site, because 4 potentially then I no longer can move seamlessly through 5 cyberspace. 6 JUDGE SLOVITER: And then when you say seam -- what 7 do you mean by seamlessly? 8 THE WITNESS: Seamlessly meaning from click to 9 click. There is a lot of evidence that the explosive growth 10 of the Worldwide Web is due to word of mouth, which means 11 that people see how exciting it is and then they tell someone 12 else. And the nature of that excitement comes from being 13 able to one minute I'm in Paris, the next I'm in Finland. 14 JUDGE SLOVITER: Okay, but if you set aside 15 excitement, because I must -- I mean, set aside that concept 16 and go to the information-retrieval sort of concept, then you 17 would put seamless -- is it fair -- because I'm just trying 18 to understand what you're saying in language I can 19 understand, is it fair that you analogize seamlessness to 20 walking into a public library without having to register? 21 THE WITNESS: Yes, exactly. 22 JUDGE SLOVITER: Okay, then I understand. Thank 23 you. 24 Did our questions elicit -- evoke any questions by 25 counsel? 90 1 JUDGE DALZELL: But you're saying that from, as it 2 were, a marketing analysis point of view that the 3 seamlessness of going from hyperlink to hyperlink is itself 4 what has attracted so many people to use this innovation? 5 THE WITNESS: Well, not even from a marketing point 6 of view, I'm suggesting from a human communication point of 7 view. So, it's much broader than from a commercial 8 perspective, because we also study the behavioral aspects of 9 being in cyberspace. And it is this ability to move 10 seamlessly through the Worldwide Web that we believe has 11 contributed to its explosive growth, yes. 12 JUDGE SLOVITER: So, you're saying they get a high 13 when they can jump from one link to another like I or Judge 14 Dalzell or Judge Buckwalter might get a high just by going 15 into a library and being able -- 16 (Laughter.) 17 JUDGE SLOVITER: -- being able to look at the books? 18 (Laughter.) 19 JUDGE SLOVITER: Other people might not, but we 20 might. 21 THE WITNESS: But some people will, that's right. 22 And notice that your high of being able to look at the books 23 is very nonlinear. 24 JUDGE DALZELL: But it's more than a high, isn't it? 25 I mean, it's a little more mundane than a high, it's just 91 1 easy, it's just easy? 2 THE WITNESS: It's easy, yes, it's easy; you might 3 get high, you might not, but it's easy. 4 (Laughter.) 5 JUDGE SLOVITER: Mr. Baron, I apparently evoked some 6 questions -- or maybe Judge Dalzell did from you. 7 RECROSS-EXAMINATION 8 BY MR. BARON: 9 Q Professor Hoffman, in response to Judge Dalzell's 10 questions you mentioned some out-of-court statements of women 11 being concerned or others being concerned about the effect of 12 the act and you hearing them say that to you, correct? 13 A Yes. 14 Q And you stated that some of these women or others 15 represent mom-and-pop businesses or small business providers, 16 correct? 17 A Yes. 18 Q Do any of these mom-and-pop businesses or small business 19 providers, are they in the business of providing sexually 20 explicit materials? 21 A I don't know, I mean, some of them might be. Some of 22 these conversations take place on an on-line community called 23 "the Well" and, while I know the people's names, I don't 24 necessarily know the nature of their business. 25 Q You can't give any concrete examples of the nature of the 92 1 businesses where people are concerned about the effect of the 2 Communications Decency Act? 3 A You mean do I know the particular lines of work? Well, 4 in the case of people that are thinking about getting into 5 the business they are very vague in the sense that they are 6 thinking of providing some sort of information. And in fact 7 a lot of times we get calls from people who would like us to 8 consult on projects in which they say what would the 9 opportunities be and, so, part of the work is to try to 10 identify, here are some opportunities for providing 11 information in cyberspace that might be profitable. In other 12 cases, like, for example, there are people who sell T-shirts 13 on line, things of that nature, people who sell posters. I'm 14 trying to think of ones that I know about, things -- those 15 are what I would consider small providers or mom-and-pops, 16 people selling catalogues to information, stuff like that. 17 MR. BARON: I have nothing further. 18 JUDGE SLOVITER: Mr. Hansen? 19 FURTHER REDIRECT EXAMINATION 20 BY MR. HANSEN: 21 Q Professor Hoffman, I would first like to follow up on 22 Judge Buckwalter's question about moderated news groups. Do 23 you know what percentage of UseNet news groups are moderated 24 in the way Mr. Fowell was suggesting in the Atlantic article? 25 A No, I have no idea. 93 1 Q Do you think that the percentage of moderated UseNet news 2 groups is a relatively small percentage? 3 A I -- well, out of 15,000 I would guess that it is, 4 because I believe it to be the case that most of the news 5 groups on UseNet news are not moderated. 6 Q I would also like to follow up just a second on the Chief 7 Judge's question when she asked you about is it like getting 8 into the library without having to check in at the front 9 desk. Is the nature of the hyperlink process such that you 10 can go effortlessly from the fourth floor of Widener Library 11 in Boston to the third floor of Carnegie Mellon's library 12 in... 13 UNIDENTIFIED SPEAKER: Pittsburgh. 14 MR. HANSEN: Pittsburgh, I'm sorry. 15 (Laughter.) 16 BY MR. HANSEN: 17 Q In Pittsburgh without ever having to travel back and 18 forth, is that the nature of what hyperlinks are all about? 19 A Yes. And even more than that though, if we -- once we 20 went from a library in one city and one state to a library in 21 another city and another state through one click, it's also 22 the case that it would be as if every single book on every 23 single shelf you had to register, because every single page 24 would require some sort of registration process. So, it 25 would be much more onerous than simply checking in at the 94 1 door, it would be every single book I wanted to select I 2 would have to go through a process to determine whether I 3 could select it or not. 4 MR. HANSEN: Thank you, your Honor. 5 JUDGE SLOVITER: Any more? The Court would like the 6 plaintiffs at some appropriate time to annotate Dr. Hoffman's 7 declaration with the sources that she gave us in testimony, 8 because I think maybe many of us did not have an opportunity 9 to put them down. Is there any objection to that? 10 MR. BARON: No, your Honor. 11 MR. HANSEN: We would be happy to do so, your Honor. 12 JUDGE SLOVITER: All right, thank you. Thank you 13 very much. 14 (Witness excused.) 15 (Discussion held off the record.) 16 MS. KAPPLER: Good morning, your Honor, it's Ann 17 Kappler from Jenner and Block for the ALA plaintiffs. Please 18 excuse my voice, I have a little cold. At this time the 19 plaintiffs would like to call Robert Croneberger. 20 THE COURT CLERK: Good morning, sir. Would you 21 please state and spell your name? 22 THE WITNESS: Robert, R-o-b-e-r-t, B., Croneberger, 23 C-r-o-n-e-b-e-r-g-e-r. 24 THE COURT CLERK: Please raise your right hand. 25 ROBERT B. CRONEBERGER, Plaintiffs' Witness, Sworn. 95 1 THE COURT CLERK: Thank you. Please be seated. 2 MS. KAPPLER: At this time plaintiffs move into 3 evidence the supplemental declaration of Mr. Croneberger as 4 his direct trial testimony. Mr. Croneberger executed the 5 supplemental declaration on March 19th and it was previously 6 submitted to this Court. 7 JUDGE SLOVITER: Is there any objection? 8 MS. RUSSOTTO: No objection. 9 JUDGE SLOVITER: Then it will be accepted. 10 MS. KAPPLER: Thank you, your Honor. I would like 11 to make one correction, if I might, in Mr. Croneberger's 12 declaration, and this is a clerical error on the part of my 13 office. In Paragraph 21 there is a reference to Plaintiffs' 14 Exhibit 203, this is his discussion of the RIM study as it 15 appears on their server, that should be a reference to 16 Exhibits 203 and 204. 17 JUDGE DALZELL: Okay. 18 JUDGE SLOVITER: Okay. 19 MS. KAPPLER: Thank you. The Government has 20 previously -- 21 JUDGE SLOVITER: Does the Government have that 22 change? 23 MS. RUSSOTTO: Yes, thank you. 24 JUDGE SLOVITER: Okay, thank you. 25 MS. KAPPLER: The Government has previously 96 1 indicated that they did not have any cross-examination for 2 Mr. Croneberger, so we are presenting Mr. Croneberger for the 3 Courts' questions. 4 JUDGE SLOVITER: Okay, but we're going to give the 5 Government a chance to say that. 6 MS. RUSSOTTO: Actually the Government will have 7 cross-examination. 8 JUDGE DALZELL: There you go. 9 CROSS-EXAMINATION 10 BY MS. RUSSOTTO: 11 Q Good morning, Mr. Croneberger, how are you? 12 A Good morning. Fine, thank you. 13 JUDGE SLOVITER: Are you on the tape today? 14 MS. RUSSOTTO: I will reintroduce myself. 15 JUDGE SLOVITER: Okay. 16 MS. RUSSOTTO: My name is Patricia Russotto, I'm an 17 attorney at the Department of Justice, representing the 18 Department of Justice in this action. 19 BY MS. RUSSOTTO: 20 Q Now, Dr. Croneberger, you are director of the Carnegie 21 Library, correct? 22 A That's correct. 23 Q In Pittsburgh? 24 A Yes. 25 (Laughter.) 97 1 JUDGE SLOVITER: We'll never forget it. 2 THE WITNESS: But not Carnegie Mellon Library. 3 MS. RUSSOTTO: Yes, I understand. 4 BY MS. RUSSOTTO: 5 Q Now, the Carnegie Library has available on line a variety 6 of materials, is that right? 7 A Correct. 8 Q And included in the on-line materials that are available 9 you have a computerized card catalogue system, right? 10 A Yes. 11 Q Which has all of the materials that are available in the 12 Carnegie Library collection -- well, I'll back off on that, 13 we went through this in your deposition. 14 A Yes. 15 Q It has about two million of the items that are available 16 in your collection, correct? 17 A That's right, yes. 18 Q And you also have available on line some of the full 19 texts of journal articles that the library subscribes to, 20 correct? 21 A Yes. 22 Q And would that also include -- do you also have some 23 books available in full text as well on line? 24 A No, except through the Internet. 25 Q Right, okay. Now, your electronic card catalogue 98 1 contains information about these two million -- some two 2 million of the items that you have in your collection, right? 3 A Yes. 4 Q And some of the catalogue entries do contain references 5 to sex, right? 6 A Yes. 7 Q And some of them contain four-letter words, correct? 8 A Correct. 9 Q And what we would characterize as the seven dirty words, 10 for purposes of this examination, right? 11 A Correct. 12 Q And when these references to sex or these references to 13 the seven dirty words do appear in your card catalogue those 14 words are a part of the title of the work or part of a 15 content description of the work, is that right? 16 A Yes. It could possibly be headings or subject headings 17 or cross-references or footnotes that the cataloguers have 18 added, yes. 19 Q Okay. But some of these, for example, if we're talking 20 about the title of a book that appears in your card 21 catalogue, perhaps The Joy of Sex would be one where sex 22 comes up, right? 23 A Correct. 24 Q And I believe you also have in your collection 25 videotapes, right? 99 1 A Correct. 2 Q So, perhaps "Sex, Lies and Videotape" would be one of the 3 titles that would come up in your card catalogue, right? 4 A Correct. 5 Q And when we're talking about music, you have a collection 6 of CD's as well, correct? 7 A Yes. 8 Q And I believe you've gone through in your declaration 9 some examples of the types of CD's that would have some of 10 the seven dirty words either in the title or in the 11 description of the contents of the CD, correct? 12 A Correct. 13 Q But these all appear in a card catalogue, right? 14 A That's right. 15 Q And after finding a reference to these works in the card 16 catalogue the library patron generally has to then go 17 physically to your stacks and either select the book or pick 18 out the CD or take the videotape off the shelf to take it 19 home, right? 20 A Yes. 21 Q They don't just go directly from your electronic 22 catalogue to the text of whatever it is that they have 23 selected that they would like to take a look at, right? 24 A Except in the case of on-line journals of course, yes. 25 Q Right, okay. Now, the catalogue entries themselves are 100 1 not actually prepared by Carnegie Library for the most part, 2 are they? 3 A Not for the most part. 4 Q For the most part you get them from the Library of 5 Congress, is that right? 6 A Yes, we get them electronically through the Ohio Center 7 for Library Cataloguing, and they're downloaded that way 8 electronically. Most of -- the majority of those entries, at 9 least the popular ones come directly from cataloguing from 10 the Library of Congress, which is loaded electronically into 11 the OCLC center. 12 Q So, you get it electronically, it's already been prepared 13 and you get it electronically and simply insert it into your 14 catalogue system? 15 A That's correct. 16 Q Now -- 17 JUDGE DALZELL: Excuse me a second. Is it your 18 testimony that the Library of Congress gives the information 19 to this Ohio center and then the Ohio center puts it in 20 machine-readable form or -- 21 THE WITNESS: No -- 22 JUDGE DALZELL: -- in electronic form? 23 THE WITNESS: No, the Library of Congress puts it-- 24 transfers it electronically. All -- many large libraries, 25 even I understand Harvard -- 101 1 (Laughter.) 2 THE WITNESS: -- contribute, as does the Carnegie 3 Library of Pittsburgh, to this electronic data base that's 4 gathered and collected in Ohio, and we all download, for a 5 fee, through this center electronically. 6 JUDGE DALZELL: So, the Library of Congress, as well 7 as -- 8 THE WITNESS: They're one of the partners -- 9 JUDGE DALZELL: -- other providers -- 10 THE WITNESS: -- yes. 11 JUDGE DALZELL: -- that's the central source is this 12 Ohio center? 13 THE WITNESS: Correct. 14 JUDGE DALZELL: Is that Ohio University or 15 something, or University of Ohio? 16 THE WITNESS: It started at Ohio University, but it 17 has now split off into an independent organization and it 18 split off to provide that kind of electronic services. 19 BY MS. RUSSOTTO: 20 Q Now, your card catalogue that you have on line, that can 21 be searched by key words, can't it? 22 A Yes. 23 Q And I believe that in Paragraph 32 of your declaration 24 you have indicated that you would have to hire some 180 25 additional staff in order to search all two million items 102 1 that are in your catalogue, correct? 2 MR. MORRIS: Could I give a copy of -- 3 MS. RUSSOTTO: Oh, I'm sorry. 4 MR. MORRIS: -- this declaration -- 5 JUDGE DALZELL: Sure. 6 JUDGE SLOVITER: Oh, by all means. 7 JUDGE DALZELL: And could you give a paragraph 8 citation? 9 MS. RUSSOTTO: It's Paragraph 32. 10 THE WITNESS: Thank you. 11 (Pause.) 12 BY MS. RUSSOTTO: 13 Q So, you have said that you would have to hire about 180 14 additional staff in order to search all two million items in 15 your card catalogue, is that right? 16 A Yes. If we had to search them manually and if we had to 17 employ professionals or paraprofessionals, yes, that's 18 correct, of our current -- just of our current collections. 19 Q Right, but you did say that you could do a key-word 20 search though through the card catalogue for words related to 21 sex or the seven dirty words, isn't that right? 22 A That's correct. 23 Q And if you do a key-word search then not all two million 24 of your catalogue entries are going to contain any reference 25 to sex or to the seven dirty words, are they? 103 1 A Well, it entirely depends, certainly that's one of our 2 confusions under the Act, it entirely depends on what one 3 means by indecent or how it is described or what terminology 4 is being used or, indeed, to what level of extent the search 5 might be, that is, whether it's on content pages or whether 6 it's on chapters, it would be very difficult to know. 7 Q Well, for example then a key-word search on the topic of 8 sex, for example, for everything that's in your card 9 catalogue, all the entries in your card catalogue that have 10 the word sex in them, a key-word search like that is not 11 likely, do you think, to turn up books about gardening, for 12 example? 13 A I certainly wouldn't know, but I would doubt it. 14 Q You do have books about gardening at the Carnegie 15 Library, right? 16 A Yes. 17 Q And a key-word search for the term sex isn't going to 18 turn up books about physics? 19 A Excuse me -- 20 Q Not very likely anyway? 21 A Yes. 22 Q You agree with that, that it's not likely to turn up 23 books about physics? 24 A Well, it's likely to turn up -- obviously plants 25 proliferate and flowers grow, and it depends entirely upon 104 1 the kind of terminology you're using, sure. 2 Q Okay. Well, what about a biography of Abraham Lincoln, 3 do you think that would turn up in a key-word search using 4 the word sex? 5 A I certainly have written -- I mean I certainly have read 6 some articles and some journal entries about Abraham 7 Lincoln's supposed or lack of sex life, yes. 8 Q Okay. What about books about travel, would they turn up, 9 do you think, in a book about -- in a key-word search for the 10 word sex? 11 A Certainly possibly, but not likely. 12 Q What about books about geology, for example, would they 13 turn up in a key-word search for the word sex? 14 A Probably only if the rock is put together with roll and, 15 in that case, yes. 16 (Laughter.) 17 Q Okay. 18 A I'm sorry, your Honors, I apologize. Probably not. 19 Q Probably not, thank you. 20 (Laughter.) 21 Q Well, would you agree that a key-word search for the word 22 sex is likely to turn up something less than all two million 23 of your card catalogue entries? 24 A Yes, if that three-letter word were the only key word 25 being used, of course, yes. 105 1 Q Well, would you agree also that a key-word search for the 2 seven dirty words are also likely to turn up something less 3 than all two million entries at the Carnegie Library? 4 A Indeed. 5 Q Now, I think you have also said, and I'm referring to 6 Paragraph 22 of your declaration, that you have the full text 7 of some magazine articles on line as well, correct? 8 A Correct. 9 Q And I believe the specific examples that you gave in your 10 declaration were Cosmopolitan, Vanity Fair and Playboy. The 11 Cosmopolitan magazine that you have on line I'm assuming is 12 the same Cosmopolitan magazine that one can buy at the 13 grocery store check-out counter, is that right? 14 A That's correct. 15 Q And the same Vanity Fair is the same Vanity Fair that you 16 can pick up at the newsstand, right? 17 A Yes. 18 Q And Playboy is the same Playboy you would pick up 19 anywhere, I assume? 20 A Yes. 21 Q Do you carry the pictures from Playboy as well? 22 A Not at the present time, the -- all of these on-line 23 magazines come through a commercial vendor called the 24 information access corporation and at the present time only 25 the abstracts and indexes for Playboy is part of that 106 1 licensing agreement that they have with IAC. 2 Q I see. So, someone who is accessing or trying to get on 3 line and get the text of a Playboy article wouldn't find the 4 pictures then? 5 A Not through our on-line magazine access, correct. 6 Q Now, referring to Paragraph 11 of your declaration, you 7 said that it is one of the missions of the Carnegie Library 8 to provide, quote, "the widest array of information to the 9 widest possible audience, both adults and minors," correct? 10 A Yes. 11 Q But you don't provide your library patrons with every 12 type of information that might be available in the world, do 13 you? 14 A No, of course not. 15 Q You do exercise some discretion over what is selected to 16 become part of the collection at the Carnegie Library? 17 A Yes. And then those discretionary things are made up a 18 lot of different reasons and parameters, yes -- 19 Q Yes. 20 A -- one of them is economics and one of them is -- all 21 different kinds of things, sure. 22 Q And we talked about some of those when we took your 23 deposition on I believe it was Saturday, correct? 24 A Right. 25 Q And I believe that during your deposition you identified 107 1 some of those selection criteria as community standards and 2 value of the material, right? 3 A Correct. 4 Q And in fact I believe that you told me in your deposition 5 that you, quote, "try to" -- I will show you the page 6 reference actually before I quote this. 7 MS. RUSSOTTO: May I approach, your Honor? 8 JUDGE DALZELL: Yes, you may. 9 (Pause.) 10 BY MS. RUSSOTTO: 11 Q Well, let me ask you it a different way, since I do not 12 seem to have a copy -- 13 MR. MORRIS: We have a copy of it. 14 MS. RUSSOTTO: Do you have a copy of it? Oh, thank 15 you. 16 JUDGE DALZELL: Thank you. 17 THE WITNESS: Thank you. 18 MS. RUSSOTTO: I apologize. 19 JUDGE SLOVITER: No, it's consistent with the 20 relationship that we've noted throughout. 21 JUDGE DALZELL: And commend. 22 BY MS. RUSSOTTO: 23 Q I was referring to Page 35 of your deposition and it is 24 the end of one of your responses where you had said, quote, 25 that in fact when you select these materials you try to 108 1 reflect what you perceive to be the community standards of 2 your community, is that right? 3 A Correct. 4 Q So, that is a correct statement of one of the criteria 5 that you would use in selecting materials? 6 A Yes. And I think if I -- that I say in addition to that 7 statement right at the same time that it's not -- it isn't 8 and cannot ever be the only criteria and that -- I go on to 9 say that I have an informal definition of a public library as 10 a place with material that offends every one and that's our 11 task, our job. 12 Q Right, I understand that, thank you. 13 A Sure. 14 Q But you don't have Penthouse and Playboy in your 15 collection, do you? 16 A Well, we have Playboy, yes. 17 Q But you don't have the magazine available in hard copy, 18 do you? 19 A That's correct, we do not. 20 Q You don't have Penthouse, right? 21 A That's correct. 22 Q And you don't have Hustler, correct? 23 A That is correct. 24 Q And among your video selections you don't have sexually 25 explicit adult films either, do you? 109 1 A That's right, we do not. 2 MS. RUSSOTTO: I don't have anything further, your 3 Honor. 4 JUDGE SLOVITER: Thank you. Any redirect? 5 MS. KAPPLER: Thank you, your Honor, yes. 6 REDIRECT EXAMINATION 7 BY MS. KAPPLER: 8 Q Mr. Croneberger, you mentioned that as currently now 9 provided Playboy appears in simply an abstract form that you 10 put it on line? 11 A Correct. 12 Q If the commercial provider who provided this information, 13 these journals to you were to provide Playboy in full text 14 would you post that magazine on line in full text? 15 A Of course, certainly. 16 Q And if it included Playboy magazine, delivered it to you 17 in full text including pictures, would you post it in that 18 form on line? 19 A Yes, we would. 20 Q Have you made a determination with your computer staff as 21 to whether you could use a simple key-word search in order to 22 ferret out the material that you post on line that might be 23 subject to the Act? 24 A Yes, we have certainly discussed it at some length and we 25 think it's not feasible, it's simply not possible to do given 110 1 the nature of communication and the nature of words and the 2 difficulty of coming up with all of the parameters that seem 3 to be, at least to us, a part of this Act, it would be 4 extremely difficult to do, impossible to do. 5 Q And I'd like -- 6 A Because we're talking -- I'm sorry, we're talking not 7 only about tables of contents, but we're also talking about 8 each edition of each magazine, each edition of each 9 periodical. 10 Q And am I correct that if you were to devise some kind of 11 a key-word search do you feel you could assure yourself that 12 you had located every item that you posted on line that might 13 be subject to the Act? 14 A No, we could not. 15 MS. KAPPLER: I have no further questions, your 16 Honor. 17 JUDGE SLOVITER: Judge Dalzell? 18 JUDGE DALZELL: Any recross, Ms. Russotto? 19 JUDGE SLOVITER: Oh, I'm sorry. 20 MS. RUSSOTTO: None, your Honor. 21 JUDGE DALZELL: Yes, a few questions. You say that 22 about a third of the cardholders of your library are minors? 23 THE WITNESS: Yes. 24 JUDGE DALZELL: And you also say that you have no 25 limitations in the library, those who actually go to the 111 1 library physically, that anyone of whatever age can go 2 anywhere? 3 THE WITNESS: That is correct. 4 JUDGE DALZELL: There is no restrictions based on 5 age? 6 THE WITNESS: Many libraries have different library 7 cards, one type of card for a minor and other for adults, we 8 do not do that and many libraries do not. In a way it's very 9 deliberately -- taking a look at society as it evolves and as 10 it changes, on the one hand there's a great need for easy-to- 11 read material on the part of adults and so, in order to 12 promote access to that material for adults, many libraries, 13 particularly in branch libraries in urban areas are 14 interfiling adult and juvenile material together, so that 15 there is no stigma attached to the adult who wants to get 16 some easy-to-read information. Conversely, the same thing 17 happens in the sense that many children are far more mature 18 in their reading levels than in the past and we openly 19 provide access to anything that that child wants. We feel 20 very strongly that it's the parent's decision on what reading 21 level is available for a child. So, if a child comes into 22 our library and wants to take out a seven-million-page legal 23 text that even adults can't understand, if that child -- we 24 certainly will try to steer that child to something far more 25 appropriate, but if that's not successful, if the child says 112 1 that's what he or she wants we certainly would give it to 2 them, yes. 3 JUDGE DALZELL: Okay. And you say in Paragraph 16, 4 you list, shall we say, some colorful titles, and at the end 5 you say in the carryover from Page 6 to 7 that these are 6 popular titles in our collection, how do you know? 7 THE WITNESS: Well, we certainly can electronically 8 just know how many times a particular book is checked out or 9 how many times a CD is checked out; we don't know who has 10 checked that out, but we know -- 11 JUDGE DALZELL: Right, okay. So, these -- for 12 example, these music titles, these are each CD's? 13 THE WITNESS: That's correct. 14 JUDGE DALZELL: So that's -- you're just keeping 15 track that way? 16 THE WITNESS: Right. 17 JUDGE DALZELL: And how do you know the next 18 sentence, "In fact the book by Ice T and the rap music CD's 19 are particular popular with teenagers," how do you know that? 20 THE WITNESS: Well, there are two methods I guess, 21 one is the popularity in terms of waiting lists. When we 22 don't have enough copies of material people sign up on a 23 reserve kind of basis and they're waiting to know. It's 24 simply our experience -- those particular books or that 25 particular book was written with teenagers in mind and it has 113 1 a great deal to do with race relations in inner city areas 2 and it's a popular item among teenagers. We have some staff 3 particularly at the main library who are called young adult 4 librarians and it's their task specifically to relate both in 5 terms of programs and collections to that population. 6 JUDGE DALZELL: All right. And Paragraph 18, 7 talking about contemporary community standards, which Ms. 8 Russotto was getting at with you. 9 THE WITNESS: Yes. 10 JUDGE DALZELL: You say, "I have no clear 11 understanding of what materials would be considered indecent 12 or patently offensive for minors by some communities." Isn't 13 the only community you have to worry about the Three Rivers 14 area? 15 THE WITNESS: No, I don't think so for a couple of 16 reasons. In the first place, the -- we know that a city like 17 PIttsburgh -- well, that Pittsburgh has many different 18 communities within it, ethnic groups that have lived in a 19 particular neighborhood, third and fourth generations in the 20 same homes, we know that there's stability about those ethnic 21 neighborhoods. We know that there are many different levels 22 of communities within the public housing communities, for 23 instance, in Pittsburgh. We know that there are religious 24 organizations and religious groups who have one level of 25 standard which is terribly, terribly different from another 114 1 level of standard which also might be religious. So, when we 2 talk about community standards, we serve communities. But 3 even more so with the electronic information, and this is 4 precisely why I'm concerned about this Act, because our 5 material is now simply available around the world at any 6 time, both the on-line journals, the RIM study, the kinds of 7 projects that we're putting on line, like the early 8 photographs of Pittsburgh we're putting all on line linking 9 them with text, historic text, and then we're even adding 10 audio tapes, we're adding oral history tapes into that 11 segment, so that an old-time resident talks about the way a 12 neighborhood has changed over that period of time. Now, 13 that's material that we're producing ourselves, so that we 14 become an on-line provider, a content provider, a distributor 15 and all of those kinds of things, that's happening more and 16 more with libraries. And the kinds of things that we have in 17 our collections that we're making available to the world's 18 population, we for instance have that one exhibit I think 19 that we have about the RIM study, we have the number of 20 specific domains that have contacted that study over a 21 certain period of time. So, it's not just our community or 22 the local folks. For whatever reason, this Act specifically 23 says that -- libraries are mentioned in it as content 24 providers or as information providers and that gives me great 25 pause, because our collections are now available worldwide. 115 1 JUDGE DALZELL: Two other -- two last questions. 2 First of all, you are active, I surmise from your vitae, in 3 the American Library Association? 4 THE WITNESS: That is correct. 5 JUDGE DALZELL: Are you in a position to answer this 6 question, therefore: Is the use of on-line card catalogues 7 superseding the hard copy that I grew up with and -- 8 THE WITNESS: Right, me too. 9 JUDGE DALZELL: -- I suspect you grew up with -- 10 THE WITNESS: Certainly. 11 JUDGE DALZELL: -- is that the trend in public 12 libraries? 13 THE WITNESS: Yes, indeed, it is. 14 JUDGE DALZELL: And is it also a trend in public 15 libraries that where you have no copyright problems, e.g. 16 plays of Shakespeare, are those going full text on line in 17 libraries? 18 THE WITNESS: Yes, they're on -- what was happening 19 is that there are providers on the Internet putting specific 20 titles like the works of Shakespeare on, so that not every 21 library does that individually, so that we all link 22 immediately to those kinds of things, those texts, and we all 23 can share them and all have them. 24 JUDGE DALZELL: So, you can hyperlink to that? 25 THE WITNESS: That's correct. 116 1 JUDGE DALZELL: Okay, thank you. 2 JUDGE BUCKWALTER: My question, Mr. Croneberger, is, 3 as I understand your 18-page declaration, the two problems 4 you have with the Act -- and maybe you have more than that, 5 but two of them are that first of all it's technically 6 impossible to comply with it and, even if it were technically 7 possible, it would be financially impossible to comply with 8 it; and, secondly, the definitions are simply impossible, I 9 mean, you just can't ascertain what patently offensive and 10 indecent mean. If you had all the money that you needed and 11 had -- that you wanted and if there were definitions of 12 indecent and patently offensive could you devise a system 13 that would prevent access to people under 18, given those 14 two -- 15 THE WITNESS: You mean provide -- 16 JUDGE BUCKWALTER: Could you provide a system that 17 would prevent access for people under 18 of indecent and 18 patently offensive material? 19 THE WITNESS: No, I don't think we could. 20 JUDGE BUCKWALTER: Because why? 21 THE WITNESS: Because our definition of what that 22 might be -- I mean even -- 23 JUDGE BUCKWALTER: No, no, no, no, I'm just -- 24 THE WITNESS: Yes, you've given me the definition. 25 JUDGE BUCKWALTER: -- giving you a hypothesis, I 117 1 just want to know if it's possible given the -- 2 THE WITNESS: Given the world's -- 3 JUDGE BUCKWALTER: -- I mean, given that you have 4 all of the money you need and, secondly, given a definition 5 that we all agreed upon, could you devise a system then that 6 would prevent people under 18 from getting what we have 7 defined and agreed upon as indecent and patently offensive 8 material? 9 THE WITNESS: Certainly I could not, because I'm not 10 an expert of anything, but I think it could be done, but it 11 certainly would contradict the mission of public libraries in 12 the country. 13 JUDGE BUCKWALTER: Oh, I agree, I agree with you, I 14 was just trying to find out whether you felt a system could 15 be -- 16 THE WITNESS: Oh, sure, I would think so. 17 JUDGE BUCKWALTER: -- it is possible to do that. 18 JUDGE SLOVITER: You don't mean you necessarily 19 agree with him that -- well, on the bottom line? 20 JUDGE BUCKWALTER: No, right. 21 JUDGE SLOVITER: Okay, I wanted to make that clear, 22 that still hasn't been decided. 23 JUDGE BUCKWALTER: Yes, that hasn't been decided, 24 absolutely. 25 (Laughter.) 118 1 THE WITNESS: I think part of our problem, if I may, 2 with that is simply that we have parents who are very 3 concerned about a child, a young child looking at a picture 4 book which may show a dog urinating against a fire hydrant 5 and to them that signifies the term indecent, or at the same 6 time another picture book, a very famous one called 'Twas the 7 Night Before Christmas, which at the end of the whole thing, 8 when Santa has gone around the world and done all of the 9 marvelous work he has done he is exhausted and takes a nip of 10 brandy before he crawls into bed for a long sleep, and 11 certainly we have parental objections to that sort of thing. 12 So that we're -- you know, we're concerned about a lot of 13 different levels of stuff here. 14 JUDGE SLOVITER: Let me -- Judge Buckwalter tells me 15 he's done, so I wanted to follow up, because that was my 16 question also. And you'll have to bear with me on this 17 because I didn't expect to ask it, but late last night when I 18 was working here and reading some of this material, in 19 something that I read last night there was listed seven -- 20 and I can't remember now whether it was -- and I can't bring 21 it up, so -- on the computer quickly, it was seven categories 22 of material and what I can't remember is whether this 23 material was the kind of thing that groups like Surf Watch 24 would get out or whether it came up in some other category, 25 but one of them was alcoholism and it dealt with where -- and 119 1 it made it -- it was kind of where you could get that. And 2 at the same time it just happened to come to my mind that 3 what would Ray Milland and "The Lost Weekend" be, would you 4 feel that if that -- would you -- as a librarian feel that a 5 movie like that would then have to be removed from 6 availability to people under 18? 7 THE WITNESS: I think that's one of my primary 8 concerns, because we don't know, we would certainly be afraid 9 so. We would be afraid that the parameters of the 10 terminology that might be searched if we're going into slang, 11 if we're going into who knows, foreign languages, if we're 12 going into visual images, our concern I think that library 13 feels and feel pretty strongly is that there is a great deal 14 of information that's terribly valuable. If for instance we 15 removed everything under the word sex we miss all of the sex- 16 education material that's terribly important that teenagers 17 have access to, because that's who it was written for, or 18 that kind of material. 19 JUDGE SLOVITER: But going back to my question, on 20 the other hand there are materials -- well, are there 21 materials that deal with excessive alcoholism which you think 22 would be pretty clearly on the other side of the line like, 23 for example, "Leaving Las Vegas," or maybe you don't think 24 that that is on that side of the line? 25 THE WITNESS: I guess I don't -- the librarian part 120 1 of me doesn't want that line to exist, you see, because I 2 think that it's a parental decision. I certainly know what 3 affects my 11-year-old and I know how to steer him, but I 4 think that if we as libraries are put in the position of 5 having to make those decisions for other people's children we 6 will fail miserably, we will not do well. 7 JUDGE SLOVITER: And if you were -- or felt obliged 8 to use something like Surf Watch or another group or 9 mechanism like that to exclude from availability to children 10 under 18 books or material that had, I think she said, the 11 hundred -- the list of hundred words, would that exclude much 12 of Shakespeare or some of Shakespeare? 13 THE WITNESS: And the Bible and on and on, I think. 14 Public libraries would love to have net-blocker software 15 available, so that we could loan them to parents free of 16 charge and have the parental responsibilities there. It's 17 something that we do not think we can do, physically do or 18 legally do or technically do, inside a library. 19 JUDGE SLOVITER: But as an expert you agree that 20 net-blockers are available? 21 THE WITNESS: Absolutely, absolutely, and -- 22 JUDGE SLOVITER: And feasible? 23 THE WITNESS: And a wonderful parental-supervise 24 tool, absolutely. 25 JUDGE SLOVITER: Okay, I understand. Thank you. 121 1 Did that evoke any more questions, any of ours? 2 MS. KAPPLER: No, your Honor. 3 MS. RUSSOTTO: No, your Honor. 4 JUDGE SLOVITER: All right. 5 (Witness excused.) 6 (Discussion held off the record.) 7 JUDGE SLOVITER: Before we -- we are going to break 8 now until 1:30, but we would like to know from counsel your 9 best estimate of how long you think you will be with the 10 returning witness, Dr. Bradner? 11 MR. MORRIS: It's my understanding that the 12 Government is finished its initial cross-examination -- 13 JUDGE SLOVITER: Yeah, that's what they told us. 14 MR. MORRIS: -- and -- 15 MR. BARON: That's correct. 16 MR. MORRIS: -- and the plaintiffs, I would 17 anticipate perhaps 20 to 30 minutes of redirect at the most, 18 I would be surprised if it went longer than that. 19 JUDGE SLOVITER: Okay. 20 JUDGE DALZELL: Very good. 21 JUDGE SLOVITER: Okay, thank you. Then 1:30 -- 22 maybe -- let's make it 1:20, can we? 23 JUDGE DALZELL: Okay, 1:20. 24 JUDGE SLOVITER: All right, 1:30. 25 JUDGE DALZELL: 1:30. Counsel, could I ask that -- 122 1 I don't know if you've done this already, but could you order 2 expedited transcript? It would be very helpful to us -- 3 COUNSEL: We have, your Honor. 4 JUDGE DALZELL: -- so we could have it next week. 5 COUNSEL: We have, your Honor. 6 JUDGE DALZELL: Okay, thank you very much. 7 (Court in recess at 12:20 o'clock p.m.) 8 (The following occurred in open court at 1:30 p.m.) 9 COURTROOM DEPUTY: All rise, please. 10 Court is now in session. Please be seated. 11 MR. MORRIS: Good afternoon, your Honors. 12 THE COURT: Good afternoon. 13 (Discussion off the record.) 14 JUDGE DALZELL: Going back to Dr. Bradner? 15 MR. MORRIS: Good afternoon, your Honors. I'm John 16 Morris, again, counsel for ALA plaintiffs -- 17 JUDGE SLOVITER: And still. 18 MR. MORRIS: And still. (Laughter.) 19 JUDGE DALZELL: Dr. Bradner, you're still under 20 oath. Do you understand that? 21 THE WITNESS: Yes. 22 JUDGE DALZELL: Very good. 23 MR. MORRIS: Just to clarify the record, Mr. Bradner 24 is not a Dr. Bradner, although -- 25 JUDGE DALZELL: Okay, Mr. Bradner, all right. 123 1 THE WITNESS: I may sound like one. 2 JUDGE SLOVITER: You fooled us. 3 JUDGE DALZELL: Sure did. 4 SCOTT BRADNER, Previously Sworn, Resumed. 5 REDIRECT EXAMINATION 6 BY MR. MORRIS: 7 Q Mr. Bradner, I really just want to go back over a very 8 few points that you just talked about yesterday. Mr. Baron 9 asked you about the Internet Protocol Version 6. Can you 10 tell me, will the user of the Internet, typical user of the 11 Internet, notice a significant change in how the Internet 12 operates when Version 6, the next generation, is rolled out? 13 A The IP Version 6 itself is just a replacement for the 14 wheels, the bit -- the packet format of the packets that go 15 across the net. The applications do not change in general by 16 changing the underlayment which goes over. There is a 17 possibility in the long term to get some increased 18 functionality to do with the ability to do real time 19 processing, telephone over the Internet kind of things, but 20 this is research work and development work yet to be done. 21 But basically the applications will remain the same 22 applications you're currently using, and you wouldn't see any 23 different -- the user would not see any difference. 24 JUDGE DALZELL: So what is the change in some? 25 THE WITNESS: The change in some is that the 124 1 individual packet can address far more nodes, so therefore -- 2 JUDGE DALZELL: Okay, so it's the 32 to the 128 3 bits. 4 THE WITNESS: Yes. 5 BY MR. MORRIS: 6 Q And, Mr. Bradner, in your declaration submitted as direct 7 testimony here, you describe a number of structural and 8 operational issues raised by the Communications Decency Act. 9 Would those issues still be in play and still be raised under 10 Internet Protocol Version 6? 11 A The issues here referred to are the inability of the 12 speaker or the poster of some information to be able to 13 determine whether the recipients are all qualified non- 14 minors, is that the -- 15 Q Right. 16 A And no, they would not change. 17 Q Okay, let me ask you, the inability of speakers that you 18 described in your direct testimony, would that significantly 19 change at all if you accepted Mr. Baron's proposal of placing 20 a tag in an HTML file or a tag in a URL? Would the speaker's 21 ability to ensure that minors didn't have access to speech 22 significantly change? 23 A I would not think it would make any difference to my 24 level of comfort that my speech was so protected, because in 25 order to agree that it was, I would have to hypothesize that 125 1 all of the possibly affected minors were using web browsers 2 which supported this tagging, and they all had been 3 configured to have that configura -- the exclusion features 4 turned on. And I would think that that would be a bit of a 5 hard push to make the -- for me as a speaker to make that 6 assumption, particularly since the pervasiveness from what I 7 read of the statute which is tedious to read, though I've 8 read it a few times, it doesn't constrain me to insure only 9 within the United States. So I would have -- since all of my 10 speech on news groups and things go worldwide, I would think 11 that I would have to be assured that worldwide that every 12 minor who happened to have -- might potentially have access 13 would have such a browser and have it configured in a way 14 which restricts access. And I think that would be a very 15 difficult thing for me to assume, and I wouldn't want to 16 assume that. 17 JUDGE DALZELL: How about if you limited it to the 18 United States? 19 THE WITNESS: It's still something where the 20 individual user, or the user's parent, if that be the case, 21 would have to insure that each individual minor who has 22 access through whatever means, through school, through 23 libraries or through the home, would have a compliant browser 24 and have that browser configured. And there's no way for me 25 as a speaker to know whether that in fact is the case. And 126 1 that's my -- the substance of my direct deposition was that, 2 that I as a speaker have no mechanism by which I can go out 3 and examine the capabilities and feature sets of what the 4 listeners are using to listen to my speech. So I don't know 5 whether they would have that restriction in. I could not 6 know whether they had that restriction in. 7 JUDGE SLOVITER: While we're on that point, I'd like 8 to ask a question so that we don't have to come back to it. 9 On page 33 of your declaration, you, in discussing tagging, 10 you said it is impossible to imbed such flags or headers in 11 many of the documents made available by anonymous FTP gopher 12 and the Worldwide Web without rendering the files useless. 13 JUDGE DALZELL: Which paragraph was that? 14 JUDGE SLOVITER: Well, it's on page 33. 15 JUDGE DALZELL: Oh, page 33. 16 JUDGE SLOVITER: Yes, page 33. Is that part -- 17 MR. MORRIS: It's paragraph 79. 18 JUDGE SLOVITER: Oh. Is that part of the same 19 matter that you're talking about? 20 THE WITNESS: No. This is a somewhat different 21 matter. The matter I was just speaking of is whether I as 22 the speaker could tell whether a user was operating a browser 23 that would inhibit -- that would watch those tags. What I'm 24 speaking of in the deposition here and I also spoke of 25 yesterday for a minute was that there are certain kinds of 127 1 files, whether there be voice files or picture files or 2 executables programs, computer programs, which you couldn't 3 actually go in and modify by adding some character stream 4 which would be these tags, without making them inoperative 5 just simply because they are a particular format. And they 6 expect to be in that format and if they're not in that format 7 and the format would be destroyed by adding some tags, then 8 they wouldn't work. 9 That doesn't mean that a new format couldn't be 10 derived. But the existing ones would not work. 11 JUDGE SLOVITER: Technologically. 12 THE WITNESS: Technologically, yes. 13 BY MR. MORRIS: 14 Q Yesterday, at least on our side of the table, a little 15 bit of confusion arose in terms of the definition and the 16 explanation of links on the Worldwide Web. Could you just 17 take a moment and explain the relationship between a link, 18 kind of a link -- the linkee and the linker. 19 JUDGE SLOVITER: In simple language. (Laughter.) 20 No, I really think that it is necessary if Judges 21 are supposed to decide matters, then it is necessary for the 22 parties and the witnesses to present it in intelligible form. 23 THE WITNESS: Well, that's a strong challenge, but I 24 will try. 25 JUDGE SLOVITER: Well, but it's a necessary one. 128 1 THE WITNESS: And if I fail, you will let me know, I 2 am sure. 3 JUDGE SLOVITER: Well, yes, and the people for whom 4 you are testifying will know, so I think it's very important. 5 THE WITNESS: Basically the way I would refer to a 6 link in this context is simply a pointer. It is a piece of 7 text, and it's just a character string, it happens to have 8 some format to it, but it's a character string which 9 specifies a particular computer on the Internet, and a 10 particular file within that computer that is being pointed 11 at. 12 It also has some structure at the beginning which 13 says what program do you use to go point at that. So I can 14 say, use the Web or use FTP or use Telnet or use some other 15 application-level program to go look at this file. So the 16 file itself is -- although I used an example of one in my 17 deposition of E2EVF12.IP which is one of the data files 18 that's on my machine that's referring to the performance of 19 some network device. That's a file name. 20 The pointer to that would include the name of my 21 machine, that's at NDTL.HARVARD.EDU and then the path to that 22 file and then that file name itself. So all it is is it's a 23 way to globally say this is the file that I'm interested in. 24 It's not relevant to where the viewer sits. It is an 25 absolute reference to the particular piece of data, and the 129 1 particular piece of data is always a file of some kind, 2 although with a reference of what program to use to do that. 3 Now, I think that the question you're asking is -- 4 or the implication you're coming up with is do I have to 5 know, if I'm the provider of a file, if I have a file on my 6 computer, do I have to be involved with somebody pointing at 7 that file, and the answer is no. I have no way of knowing 8 whether somebody has a URL, one of these pointers, which 9 refers to one of my files or refers to my computer. It can 10 be -- other people do that. I know they do, I don't know 11 who, but I do know that computer manu -- vendors of these 12 devices have given out pointers to their data within my 13 system. But I don't know who did it. I have no way of 14 knowing. There's no involvement on my part. It is simply 15 that somebody has said, if you're interested in finding out 16 about the performance of this product, here is the URL of the 17 file. And so there is no relation, there is no implied 18 relationship between the pointer and the pointee, to use your 19 semi-technical words. 20 Was that clear enough? 21 JUDGE SLOVITER: Yeah, finally. (Laughter.) 22 BY MR. MORRIS: 23 Q Just as I understand it then, someone else, a company can 24 point to your computer and point to a file on your computer. 25 Do they have to point to your home page, or can they point to 130 1 other files on your computer? 2 A As I mentioned yesterday, they can point to the specific 3 file that they're interested in, bypassing any structure that 4 I have, including my home page or any subsidiary pages or any 5 directory structure. They specify the particular file that 6 they want people to look at. It is irrelevant to what 7 sequence I might want them to go through, if I had a home 8 page and subsidiary pages, they would be bypassed entirely if 9 the pointer so chose. If the pointers chose to specify a 10 particular data file, it would bypass all of that. 11 Q And so if you placed some HTML flag or tag in your home 12 page, that would be bypassed by someone linking to one of 13 your lower pages? 14 A That is correct. This page, the home page, would not be 15 loaded, would not be observed, would not be accessed, would 16 no be hit, to use the parlance that was talked about this 17 morning by the person who was accessing the data file. It 18 just wouldn't be seen. 19 Q And say -- in a lower page, say you placed a flag in a 20 lower Web page, and that Web page included a reference to an 21 image on your computer. You didn't place a flag on the image 22 because you had a flag on the page that gave immediate access 23 to the image. Could someone link to that image without 24 linking to the page that you have intended to be the 25 presentation of that image? 131 1 A Yes. You can configure browsers such as Netscape such 2 that when you are selecting an image or something like that, 3 selecting a URL, it will show up in a screen, a little window 4 in the page. So if you type that down, type down, write down 5 that information, you have the literal pointer to a file. 6 And if the file happens to be a picture file which is 7 imbedded in -- which I would normally embed in one of my 8 pages, then you can reference it directly. It is just 9 another point to another file. There is nothing special 10 about it in the context of the way things are organized on 11 the computer, it's just another file that happens to have a 12 pointer to it or more than one pointer to it, however many 13 pointers that people, including me or others, have created. 14 Q Okay, there's been a fair bit of discussion today and 15 yesterday about the concept of a hit. In terms of you as a 16 speaker being able to control access or screen access in some 17 way to who's getting your files, does the -- if someone comes 18 to your Web page and initiates ten hits by getting an HTML 19 file and a graphic image and an audio file, to keep content 20 from that person, would you need to screen just once, or 21 would you need to screen each request for each different 22 file? 23 A Making the assumption which is implied in your question 24 that there is a way that I can identify the originating query 25 by using its IP address, and I want to somehow decide that 132 1 this person or this computer where the query is originating, 2 and that's what I'm using to filter on, then from the 3 server's point of view I would have to make a check for that 4 query every time a query -- a check for that address every 5 time a query came in and a query is a hit. So for every hit, 6 my server would have to verify that address. 7 Q So if a thousand people on a given day visited your site 8 and generated let's say 4,000 hits by looking around your 9 site, then do I understand that you would have to -- one 10 would have to screen 4,000 times or just 1,000 times? 11 A The actual mechanism would require the screening 4,000 12 times. Now, just the software puts things in the temporary 13 storage called cashing, such that the second look-up is 14 quicker than the first one, but it still has to look up each 15 one individually. 16 Q Okay. Let me just run over a few little loose ends on 17 some of the other areas that you were asked about yesterday. 18 With listserves, can you just explain that there's 19 an individual or perhaps a company that decides to create a 20 mail exploding program, like Listserve or Major Domo. and 21 then who actually speaks through that listserve? Is it just 22 the company, just the individual who created the listserve, 23 or who speaks to that? 24 A Most listserves are for discussion. Some listserves are 25 for propogation of information like advertising. In the 133 1 latter case then the organization that creates it, it's just 2 a mailing list for that organization, and in which case just 3 somebody from that organization speaks. But for the vast 4 majority of listserves or mail exploders, it is a 5 communications mechanism between the people on that 6 listserve. Anybody who sends mail to the listserve will -- 7 the mail will be forwarded to all members of the listserve, 8 all addresses which are in the listserve. 9 There are some listserves set up so that only people 10 who have subscribed can send mail to it, and others that are 11 set up so that anybody can send mail to it, but only people 12 who have subscribed will see that mail. But there is in most 13 cases, although than the moderated listserves where the mail 14 will go to a moderator and then be forwarded, anybody who has 15 the address of the listserve can send mail to it and it will 16 be forwarded to all of the folks whose addresses are listed 17 in the list. 18 Q So it's a fairly open means of communication. 19 A Yes. 20 Q Let's briefly discuss news groups, Usenet news groups. 21 There was actually a little uncertainty today, I believe you 22 probably were in the courtroom, about number of moderated 23 news groups. Do you have any information that you could 24 provide the Court, any estimate of moderated news groups 25 versus unmoderated news groups? 134 1 A I can only estimate based on when I ran the news server 2 at Harvard, which I stopped running about two years ago. The 3 number of moderated news group was in the ten percent or 4 maybe a little bit less range. My guess today, and this is 5 mostly a guess, would be that it would be a significantly 6 smaller amount. As I think I've talked yesterday, news 7 groups and the number of people on the news groups are 8 growing quite rapidly, so the requirement of effort of a 9 moderator is also growing. So that to find people who are 10 willing to wade through thousands of messages a day to decide 11 to forward them is getting harder and harder. We don't have 12 that many masochists, I guess. And therefore the number of 13 moderated news groups is dropping. A number of news groups 14 that used to be moderated are no longer moderated because 15 they can't find somebody with the right degree of gumption to 16 moderate it. 17 Q And moderators are usually volunteers? 18 A In most cases where it's not a news group that's set up 19 by a particular organization to talk about their product, 20 they are volunteers, yes. 21 Q Okay. Yesterday there was also -- you were asked about 22 the creation of new news groups. I believe you said the Alt 23 hierarchy was fairly free, people could create things 24 individually. But the other hierarchies, could you explain 25 again who creates that? Is there one entity or organization 135 1 that approves the creation of a new news group within a -- 2 say, for example, the Biz hierarchy? 3 JUDGE SLOVITER: The what? 4 MR. MORRIS: Biz, B-I-Z, as in business. 5 THE WITNESS: One of the hierarchies I mentioned 6 yesterday. Somebody within a news group, taking for example 7 the one that I used yesterday, the REC.AUTO (ph) news group, 8 the traffic got large on the REC.AUTO news group, and a 9 number of people proposed to the news group that the news 10 group be broken up into subcategories for people of different 11 interests. A discussion ensued amongst the people who 12 subscribe to the news group, and a proposal was worked out as 13 a democratic back and forth process and a suggestion was sent 14 off to a particular news group which is called NEWS.NEWS 15 GROUPS or something like that, which is a specific news group 16 set aside to discuss the creation of new news groups, and a 17 discussion occurred on there. Then a call for a vote is 18 given. And then whoever is doing the proposing for this news 19 groups, which is just somebody of interest, somebody who's 20 interested in it, collects up the E-mail votes that they get, 21 and posts a list of all of the votes. It's this many votes 22 in favor of this proposed news group and this many votes 23 opposed, over some duration of time. 24 If the votes are more than a certain amount, and it 25 used to be that you had to have 100 votes in favor and no 136 1 more than 25 against, -- I don't know what the numbers are 2 today, that was what it was three years ago, and I suspect 3 the numbers are much higher today -- then it's declared that 4 that news group is a legitimate news group. And by declared, 5 it's just the yes, it met -- everybody agrees it met the 6 requirements so therefore it's legitimate, and whoever put in 7 the original proposal would then issue the news group 8 creation command and it would go off and create the propagate 9 the creation of news group. 10 Then the one other thing is that, as I mentioned 11 yesterday, there are volunteers who maintain lists of 12 approved, in the sense of this process approved news groups, 13 within different portions of the hierarchy of the news 14 hierarchy, like within the Biz hierarchy, and a volunteer 15 will add it to their list. Then this list is periodically 16 sent out and some news servers are configured to delete any 17 news group in a hierarchy that doesn't appear on the list. 18 So it's a democratic ad hoc process. 19 BY MR. MORRIS: 20 Q Okay. Briefly, could you just explain the process of 21 registering a domain name with the Internet, at least in the 22 United States, as I understand it. Has your domain name been 23 registered with the Internet? The NEWDEV.HARVARD.EDU(ph)? 24 A No. The domain name is divided up in different sections, 25 as was explained this morning about the .EDU and .HARVARD and 137 1 then NEWDEV is my particular machine. The portion of the 2 domain name which is registered is the organization's domain 3 name. So in this case it's HARVARD.EDU is what gets 4 registered. Within HARVARD I have registered NEWDEV, but 5 this doesn't get registered with the Internet, it is entirely 6 within HARVARD. I have a domain name of my own for my little 7 consulting company and I have registered that. But the 8 computers within that I register with myself and I rarely 9 complain so I get them registered quickly. (Laughter.) But 10 that's only within my own domain. 11 The domain in the simple case, it is something like 12 HARVARD.EDU, it would be a little more complicated if we have 13 a domain such as the .USTOPLEVEL domain which was also 14 mentioned this morning, that two-level country codes are one 15 of the types of top-level domains along with EDU and ORG. In 16 the U.S. these are divided geographically. 17 So for example the Web page that I mentioned 18 yesterday of IETF -- WWW.IETF.ORD is actually on a computer 19 that's run by a company in Western Virginia, and the 20 company's name is CNRI, Corporation for National Research 21 Initiatives. And their domain name is CNRI.RESTON.VA.US. 22 And then there's computers within that. So it's 23 IETF.CNRI.RESTON.VA.US. The CNRI.RESTON.VA.US is what was 24 registered as the domain name but the machine within it is 25 not. 138 1 Q Okay, just one last question. Judge Buckwalter earlier 2 asked Dr. Croneberger if he had all the money in the world 3 and a clear definition of the patently offensive and 4 indecent, would it be possible to develop a system. And I'd 5 be interested if you could tell the Court, is that possible? 6 Do you think that's possible? 7 A As a theoretical exercise, I think it probably is 8 possible. But for me as a speaker to be able to be insured 9 that this was being met, the only thing I can think of, and I 10 have thought about this a little bit, is we would have to 11 have a mechanism by which all of the listeners, in every 12 category, listeners to news groups, listeners to listserve, 13 listeners on the Web, all of the listeners, all of the people 14 retrieving information, would have to be able to provide some 15 form of identification. 16 Now, the identification wouldn't have to be more 17 than a "Yes, I'm over 18" kind of identification, but in 18 order to insure that that's reliable, you would have to have 19 a mechanism by which you could create this identification 20 such that it couldn't be easily forged. There is a concept 21 that is being worked on that is called Digital Signatures, 22 and the U.S. Post Office as an organization is looking into 23 doing an identification check at post offices whereby someone 24 would come in and identify themselves and they would get a 25 bit pattern, a digital signature, which they could then use 139 1 to identify themselves in commerce and in correspondence, 2 perhaps even at some point legal correspondence. One could 3 in theory add to that identification some flag in there to 4 indicate whether they were over or under 18. 5 But that would assume the mechanism were actually 6 installed and in place of going -- of people going to the 7 post office and getting these identities, and that you would 8 have to have the identity before you could surf the Web. 9 Without that kind of structure, without making the assumption 10 of something in place so that I could be sure that a 11 listserve could be created that would only accept 12 subscriptions from those over 18, and I could query that 13 listserve to be sure that it was one which was doing that, I 14 think it would be hard. 15 But in theory I could imagine a scenario by which 16 this could be done, but it wouldn't take quite all the money 17 in the world, as in the proposition, but I would have fun if 18 it were a cost plus contract. (Laughter.) 19 MR. MORRIS: We have no further questions. 20 JUDGE SLOVITER: Thank you. Is there recross? 21 MR. BARON: Yes, your Honor. 22 JUDGE SLOVITER: Mr. Baron. 23 MR. BARON: Good afternoon, your Honors. 24 JUDGE SLOVITER: Good afternoon. 25 RECROSS-EXAMINATION 140 1 BY MR. BARON: 2 Q Good afternoon, Mr. Bradner. 3 Mr. Bradner, I'm going to give you a hypothetical. 4 Let's assume you have a simple Worldwide Web Web site on a 5 Web server with a home page. And the home page has a URL 6 associated with it. And for purposes of this example, we'll 7 just name it this generic name. The URL is 8 HTTP://WWW.WEBSITE. Are you with me on that? 9 A So far it's simple. 10 Q Okay. Now, let's assume that the home page also has 11 pointers to ten files on that Web site or Web server. And 12 each of those files has a separate URL which is an extension 13 of the home pages URL. 14 A Yes. 15 Q And let's just for the purposes of this hypothetical say 16 that the URL for each of those ten files is 17 HTTP://WWW.WEBSITE/FILE1 and then iteratively FILE1... 18 through FILE10. Still with me? 19 A Yes. 20 Q Now, you have admitted in your prior testimony that it is 21 a trivial matter for an owner of a Web site to imbed a tag or 22 label in HTML source code in the header of that source code 23 on the home page, correct? 24 A On any particular page, whether it be the home page or 25 not, as long as it's an HTML page that would be easy to 141 1 augment it, yes. 2 Q And as a technical matter, it would also be possible to 3 imbed a unique tag or label in HTML source code for each of 4 the files 1 through 10 with those separate URL extensions in 5 my hypothetical, correct? 6 A I'm a little confused here, because to me you may be 7 mixing two things. One is the files themselves, and I just 8 said that any file you could put -- any HTML file you could 9 put such a tag in. And the URLs which are different things. 10 You could put tags in the URLs also. 11 Q I'm not speaking about the tags in the URL, but the tags 12 in the files. So each of those files with a separate URL 13 address would have HTML source code associated with that file 14 and a tag could be put in for file 1, file 2, iteratively, 15 file 10. 16 A If indeed they were HTML files, yes. 17 Q And the operation of that tag on any one of those files 18 on that site would, assuming that it's a tag that's set up to 19 be coordinated with parental blocking mechanisms, would 20 operate to block that URL extension, that particular file on 21 that Web site, that unique file, 1 through 10. 22 A Assuming that it was A, as you speculate, set up to do 23 so, and B, that the user was using a browser so configured to 24 do that blocking, yes, all files are equivalent in that 25 context. 142 1 Q And any browser set up to look at the URL for a 2 particular file 6 or file 8 or file 10 would be blocked if 3 there was that mechanism for tagging and the browser was set 4 to look? 5 A Well, to be very specific, just to not be confusing here, 6 what would happen is in your scenario that the browser would 7 go off and it would retrieve the file, file 1, file 2, 8 whatever, it would retrieve that file. It would actually go 9 off and start to retrieve the file, perhaps even retrieving 10 the whole file, then look at the HTML if it's an HTML file, 11 then make the decision. So the fact that it has a URL is 12 independent. It just happens that all files that are on Web 13 servers have either real or implied or constructed URLs 14 simply because as I just said, the URL is really just a way 15 to identify a file. So we want to make sure that we're 16 talking about two different cases, because yesterday we were 17 talking about putting tags in URLs and we're talking about 18 putting tags in the files, and I want to be sure that we've 19 got those separated because they're different concepts. 20 Q Okay. And in paragraph 30 -- sorry, paragraph 79 of your 21 supplemental declaration at page 33, you mention the concept 22 executable programs. Could you explain with some concrete 23 examples what executable programs are? 24 A The example I used yesterday was a screen saver, which 25 would draw pretty pictures on your screen instead of burning 143 1 your logo into the screen when the screen's been idle for a 2 while. Many of those exist on the net, and you can retrieve 3 them anonymously FTP or over the Web for free. They are 4 there because the screen saver will come up and advertise 5 some product or it's just because somebody thought that the 6 picture they did was cute, or the function they did was cute. 7 It was an intellectual exercise or a class exercise. So many 8 of these are out. Hundreds of these screen savers exist and 9 you can go retrieve them, but they are binary files. 10 Q Do they usually have a .EXE suffix? 11 A The .EXE is for a particular kind of binary file that's 12 used on PCs. There are other extensions for other kinds of 13 computers, for other types of binaries. 14 Q Now, to the best of your knowledge, are any of the home 15 pages of any of the plaintiffs in this lawsuit, do they 16 comprise executable programs or files? 17 A Since I don't know the list of the plaintiffs by heart or 18 even by remembering having read it, the full list, it seems 19 to be quite an extensive list, I couldn't answer, but it 20 would seem to be unlikely that a home page would be a binary 21 per se, though possible, because it could be a graphical 22 image, but it wouldn't seem to be very likely. 23 Q If one had an executable program in a file, is there 24 anything about that mere fact that it's an executable program 25 that would prevent the owner of the Web site from registering 144 1 or otherwise making known the page where the executable 2 program was to the many tens or hundreds or thousands of 3 directories in cyberspace or to any of the companies that 4 operate browsers or parental control mechanisms. Is there 5 something special about executable programs? 6 A An executable program when viewed by the Web is just 7 another page. It happens that when the browser goes to try 8 and retrieve it, it uses a different retrieval mechanism than 9 it does when it's trying to retrieve text or HTML. But it's 10 just another page, and one can -- and that page has a unique 11 URL, and yes, one could register in theory any URL pointing 12 to any file that was on any server, and there is nothing 13 special in that context about a binary, no. 14 MR. BARON: I have no further questions. 15 JUDGE SLOVITER: Any more from the plaintiffs? 16 MR. MORRIS: No, your Honor. 17 JUDGE SLOVITER: Okay. Judge Dalzell. 18 JUDGE DALZELL: Yes. I wonder in paragraphs 73 19 through 76 you talk a good deal about cashing, and I must say 20 I really don't follow it. Would you just, using the standard 21 that Chief Judge Sloviter put so well, could you just 22 rehearse for us exactly what you mean by cashing? 23 THE WITNESS: That standard was that it should be 24 understandable? 25 JUDGE DALZELL: You'll forgive the expression, yes. 145 1 (Laughter.) 2 THE WITNESS: Well, let's take the example I think I 3 used. But the basic idea is you would like to minimize the 4 number of times that you go off and you retrieve something, 5 that you actually have to go to the actual server to retrieve 6 something. Cashing is not a new concept. It's used in 7 computers between the processor and disk so that if you want 8 to reload the same file off of disk between the processor and 9 memory if you want to reread some portion of memory into the 10 processor, instead of going to the relatively slow memory or 11 the relatively slow disk, it goes and gets it out of the 12 cash. 13 In the case of cashing Web servers, which is what I 14 was speaking of in there, the same concept applies. Many 15 universities, many organizations have as a function built 16 into their firewall or built into a device sitting between 17 their network and the rest of the Internet, they have an 18 ability to watch the HTML requests go by and see what comes 19 back and save a temporary copy of what comes back. 20 JUDGE DALZELL: How temporary? 21 THE WITNESS: That's usually locally configurable 22 and it's frequently done based on how much disk space you 23 have. Once you start getting low on disk space, you throw 24 away the things which haven't been accessed for the longest 25 period of time. And -- 146 1 JUDGE DALZELL: Well, you give in paragraph 73 the 2 hypothetical of cashing when a user in Europe requests access 3 to a Worldwide Web page located in the United States? 4 THE WITNESS: Yes. 5 MR. MORRIS: Your Honor, could I -- 6 JUDGE DALZELL: Yes, sure, sure. 7 THE WITNESS: Yes. 8 JUDGE DALZELL: Now, do I understand correctly that 9 the first time that the European user accesses the American 10 information page, it is put somewhere in cyberspace on the 11 east side of the Atlantic? 12 THE WITNESS: In this particular hypothetical, to 13 use a word that was just being used at me, what would happen 14 is that the people who operated the transatlantic link, and 15 it happens that in the real world of data networking the 16 Europeans have to pay for their links into the U.S. The U.S. 17 doesn't pay for the links because everybody thinks we're more 18 important and so far the Europeans have agreed with that. I 19 think that may change in time, but they want to minimize the 20 utilization of that link. They don't want to have it 21 retrieve the same file again and again and again from some 22 U.S. site. So they would put on their end of the link a 23 cashing Web server. So that when a request came in from 24 Europe, if it wasn't in the cash it would go do the request 25 across the Atlantic, across the relatively small and very 147 1 expensive link, retrieve that file and then store it in the 2 cashing Web server and pass a copy onto the requester. 3 JUDGE DALZELL: But storing it in the Web server in 4 your hypothetical in Europe? 5 THE WITNESS: That's correct. 6 JUDGE DALZELL: Now let's reverse the hypothetical 7 because we're told a significant percentage of the sexually 8 explicit material comes from abroad. I mean I know you're 9 not an expert on that, but that's what we're told. 10 THE WITNESS: I don't know from personal experience, 11 no. 12 JUDGE DALZELL: Right, but that's what we're told. 13 Let's assume that's true, okay. 14 THE WITNESS: Mm-hmm. 15 JUDGE DALZELL: So the American server, the American 16 user types in "sexy European girls," okay. Now, that goes to 17 Europe, pulls it back and it's held for a time in somewhere 18 on this side at the west side of the Atlantic so that it 19 could be accessed again for some finite period of time? 20 THE WITNESS: The European, in this case because the 21 transatlantic link as operated -- as paid for by a European 22 company, if the European company put such a server on this 23 side in order to preserve the band width coming the other 24 direction, which they could easily do, then yes, it would be 25 stored for a time on this side and it would be identified by 148 1 the URL, that's basically -- URL being index into it. 2 JUDGE DALZELL: Same hypothetical except the 3 provider of the sexually explicit material is in Thailand. 4 Any difference in your answer? 5 THE WITNESS: It's probably more likely to have a 6 Web cashing server there because the transpacific links are 7 very, very expensive, million dollars a month for a good- 8 sized link from the U.S. to Japan, for example. 9 JUDGE DALZELL: And who is paying for that link? 10 THE WITNESS: The Japanese Internet service 11 providers. 12 JUDGE DALZELL: Collectively. 13 THE WITNESS: There are a number of different links. 14 I was quoted the million dollars a month quote by somebody 15 involved in the Asian-Pacific Network Information Center a 16 couple of months ago, and I'm not sure if that was from a 17 particular Internet provider in Japan, or whether that was 18 some conglomeration. 19 JUDGE DALZELL: Judge Sloviter wants to ask about 20 cashing. 21 JUDGE SLOVITER: Now, given now that you have 22 explained cashing in terms that maybe we can understand, 23 thanks to Judge Dalzell and to your willingness to do so, 24 what happens, what is the effect? Now that we know the 25 concept, what is its relevance to the issues before us in 149 1 this case? 2 THE WITNESS: The primary relevance, the reason that 3 I brought it up in the statement is that once this is cashed, 4 you know when someone asks to see it, the original server 5 does not see the request. The original server's request -- 6 the user's request is fulfilled by the cashing server and 7 that request is not passed on to the originating server, so 8 the originating server has no way of knowing who or how many 9 or anything else. We were talking about hits earlier. The 10 originating server would have no way of knowing how many 11 times this file was retrieved because it wouldn't get the 12 hits. 13 JUDGE SLOVITER: And the file would be identified 14 though as coming from the original server? 15 THE WITNESS: It would -- remember that in the -- we 16 were talking -- I missed yesterday afternoon, but I was told 17 about your adventures in cyberspace -- 18 JUDGE SLOVITER: And never get it back. 19 THE WITNESS: Everything is just a URL. There is 20 nothing particularly in that URL that tells you really where 21 it came from. There's some names in it which if given some 22 work we could figure out where some particular site exists, 23 but we don't know where SEXYEUROPEANGIRLS.COM might be, the 24 server might be. That actually might be in the U.S., it 25 might be in Europe, could be anywhere. There's just the URL, 150 1 which is, as I explained a minute ago, it's the application 2 followed by a site name followed by a file name. What is 3 saved in the server, in the cashing server, is the URL and 4 the file associated with it. So that's all that's there. We 5 don't have any way of tying anything else together than that. 6 JUDGE SLOVITER: So you don't -- you can't identify 7 either the pointer or the pointee, is that the point? 8 THE WITNESS: It's not so much that, it's that if 9 somebody in Europe were retrieving a data file from my 10 server, let's say one of my newspaper columns, and they 11 retrieved that, I would see a retrieval from the local end of 12 the -- the cashing server in Europe or in the U.S., however 13 it was done, I would see one retrieval from that. There 14 could be many other people who might want to read it -- 15 that's not borne out by what my editor says -- but there 16 might be other people. I would never know whether anybody 17 else read it, retrieved it within the time period of how long 18 the cashing server kept it. 19 JUDGE SLOVITER: And would the cashing server know 20 how many people retrieved it? 21 THE WITNESS: As long as it in turn wasn't behind 22 another cashing server. Because organizations put cashing 23 servers on their boundaries to minimize the link, the 24 utilization of their link to the rest of the Internet because 25 those links are expensive, and if they're keeping, retrieving 151 1 the same files, they're making use of the link that they 2 wouldn't otherwise need to. 3 JUDGE DALZELL: You see, this is why I think this 4 may be important to our consideration. Whoever it is who 5 created the Web page, let's say SEXYEUROPEANGIRLS, let's 6 hypothesize in Luxembourg, does not think or may not be 7 thinking about complying with Title V of the 8 Telecommunications Act of 1996, but the cash server in the 9 United States, as I understand your testimony, effectually 10 domesticates that Luxembourg Web page, does it not? 11 THE WITNESS: If indeed there is such a server 12 there, but again, it could be a server there, it could be a 13 server that's on the boundary of a corporation or a school. 14 There could be many servers up and down the line. Each one 15 of those, if they're within the U.S. could yes, be 16 domesticating it. 17 JUDGE DALZELL: Could Mr. Coppolino and his troops 18 find that domestic cash server to prosecute them? And if so, 19 how would they do it? 20 THE WITNESS: You can -- actually there's nothing in 21 the information that you retrieve when you -- when somebody 22 goes to retrieve it, there's nothing to indicate where that 23 came from. So if indeed for example the servers have been 24 tweaked so that they didn't save copies of files from 25 SEXYEUROPEANGIRLS.COM, then you wouldn't as someone reading 152 1 from this side of the Atlantic, you wouldn't be able to tell 2 that it was or was not cashed anywhere along the line. 3 JUDGE DALZELL: And there would be no way for me to 4 know that and therefore no way for Mr. Coppolino and his 5 troops to know that? 6 THE WITNESS: That's correct. 7 JUDGE DALZELL: Okay. But nonetheless I would see 8 an untagged SEXYEUROPEANGIRLS; correct? 9 THE WITNESS: You could see that. 10 JUDGE DALZELL: Even if all domestic information 11 providers agreed, yes, let's tag all our URLs, the folks in 12 Luxembourg don't give a darn what our law says, but 13 nonetheless their information may come to my son, who's ten. 14 THE WITNESS: That's correct. 15 JUDGE DALZELL: Okay. 16 THE WITNESS: The other worry that I have in that 17 actually is a little bit perhaps even the other way. From 18 what I understand, we went through this process of the CD 19 providers agreeing to tag rap songs with parental guidance. 20 And the experience was that those CD's so tagged sold better 21 than the ones that were not. (Laughter.) I would have some 22 worry that people would actually, SEXYEUROPEANGIRLS.COM would 23 actually be quite happy to put tags on and then make sure 24 that there were browsers readily available that would seek 25 out sites that had such tags. 153 1 JUDGE DALZELL: Okay, that's very helpful. A couple 2 technical questions. FTP and gopher. Are they forms of 3 search engines? 4 THE WITNESS: No, they're just file retrieval 5 devices. 6 JUDGE DALZELL: And how do they differ from a search 7 engine like Alta Vista (ph)? 8 THE WITNESS: Alta Vista builds up a database which 9 when you send a query to it, it looks into its local database 10 to see whether it has entries that match that query, and 11 return to you the pointers, URLs, that correspond to those 12 matches. 13 JUDGE DALZELL: As I understand, FTP and gopher or 14 Alta Vista, if I type in Scott Bradner, they're all going to 15 go looking for anything mentioning you, won't they? 16 THE WITNESS: FTP -- no, FTP is an interactive 17 program with which you can tell it to retrieve a particular 18 file. So if I gave you the name of a file on my machine, 19 there is a process by which you could interactively go 20 through and retrieve that one file. It is not the kind of 21 thing -- FTP is not the kind of thing, nor is gopher the kind 22 of thing which by itself you can say, go find every file 23 which has Scott Bradner in it. All it does is say, here is a 24 file name. Here is a URL. Here is the extended URL. In the 25 case of FTP, you actually give it the machine name separately 154 1 and the file name separately, and you have to do all kinds of 2 -- 3 JUDGE DALZELL: But in Alta Vista I could just 4 search Scott Bradner? 5 THE WITNESS: It has been done. (Laughter.) 6 JUDGE DALZELL: I'm sure of that, maybe by people in 7 this room. (Laughter.) 8 Lastly, you talk in paragraphs 70 and 71 of your 9 declaration about common gateway interface or script, a CGI 10 script? 11 THE WITNESS: Yes. 12 JUDGE DALZELL: And that you say is an option that 13 is at least possible on the Worldwide Web where the -- if you 14 had the resources you could screen out users? 15 THE WITNESS: It's basically -- and we were talking 16 this morning, we were talking about forms type interface 17 where you have little boxes to fill in, one of the things 18 that can happen when you fill in those little boxes is you 19 can fire up, you can start up a program and CGI is one of the 20 ways you can start up a program, which takes as its input 21 information in the boxes. 22 So for example it could take as input somebody's 23 credit card number. 24 JUDGE DALZELL: All right. 25 THE WITNESS: And then if mechanisms existed to 155 1 verify that credit card number purely electronically or over 2 the Net, it could go ahead and do that in theory. 3 JUDGE DALZELL: Okay, that's very good. Thank you 4 very much. 5 JUDGE SLOVITER: I'll ask a question while you're 6 thinking. 7 JUDGE BUCKWALTER: No, you go ahead. 8 JUDGE SLOVITER: When you used the term "trivial" 9 yesterday a number of times, and I'd have to go back and 10 retrieve and I don't have it all here and we don't have daily 11 transcripts so I don't know, do you mean by trivial, trivial 12 to somebody with your expertise, or technologically trivial, 13 or do you mean trivial because it doesn't take a lot of money 14 or because it doesn't -- I didn't quite understand what you 15 meant, and you used it at different times, so you may have 16 used it differently. 17 THE WITNESS: I believe most of the time that I used 18 it it was in response to a direct question from Mr. Baron who 19 used it in -- when we spoke last week. But be that as it 20 may, I did use it and by that I really meant that it was 21 really easy to do, given -- I think in the deposition what I 22 said was -- or in the discussion we had last week, I said 23 something along the line of given a sample home page with a 24 fill in the blank of how you would designate naughty stuff 25 below, anybody could take that sample and modify it for their 156 1 own environment just trivially, because all it is is an 2 editing task. It's just like editing a letter to one's 3 mother. It's just characters. And as long as you have a 4 model to follow and a set of instructions to follow, it's 5 easy to do. 6 So I think in most of the contexts that I was 7 referring to yesterday, in that it's easy to do, not 8 necessarily for somebody with a great deal of expertise but 9 given the right environment, it would be easy for anybody to 10 do. It would be difficult for me to do it today because I 11 don't happen to be an HTML expert. I went out -- after our 12 discussion the other day I went out and bought a book because 13 he asked me some embarrassing questions I should have known 14 the answer to. But it would take me some time and it would 15 be untrivial, both in terms of time and at my normal billing 16 rate expense for me to set up a home page to do this. But if 17 I were given a sample home page with, if you fill in your 18 name here, everything will be fine, it would be truly trivial 19 to do. 20 JUDGE SLOVITER: Thank you. 21 JUDGE BUCKWALTER: I was thinking of carrying Judge 22 Sloviter's example being simple maybe to the ridiculous, I 23 hope not, but maybe my analogy would help me, when I was a 24 young man I wanted to be a user of the local bar when I was 25 in college. But the provider (laughter) was by law forbidden 157 1 to serve me if I were under the age of, I think it was 21 2 back then. Do I understand that it's somewhat analogous that 3 if the provider puts up a sign there that says no one under 4 21 allowed to drink that that's a tag? 5 THE WITNESS: That would be -- that would be an 6 equivalent to a tag, yes. 7 JUDGE BUCKWALTER: That would be equivalent to a 8 tag. And do I further understand that if that sign were in 9 Japanese, I wouldn't be configured to understand that tag or 10 -- is that what we mean by being configured? Make the 11 assumption that I don't understand Japanese language, but -- 12 THE WITNESS: Well, I think that's a common 13 assumption in this room. 14 JUDGE BUCKWALTER: Yes. 15 THE WITNESS: Certainly an assumption that falls 16 with me. Actually what I think I was referring to was a 17 little bit different than that -- 18 JUDGE BUCKWALTER: Okay. 19 THE WITNESS: -- in that it was more along the line 20 of yes, I guess, am I configured to be able to read and 21 understand that sign. 22 JUDGE BUCKWALTER: Me, the user, I'm not configured, 23 so on -- 24 THE WITNESS: Yeah, can you read the sign. 25 JUDGE BUCKWALTER: -- that point, that tab would be 158 1 no good to me. 2 THE WITNESS: That's correct. 3 JUDGE BUCKWALTER: Right now, I'm configured to 4 understand English so the tab would be good. 5 THE WITNESS: Yes. That's what standards are useful 6 for. 7 JUDGE BUCKWALTER: However, it wouldn't be 8 sufficient to guarantee that I wouldn't get in the bar and 9 get a drink, right? 10 THE WITNESS: In the context of the law, I think 11 what we're to extend this simile to probably ridiculous 12 levels, it would appear to me that the provider of liquor to 13 that bar has to insure that the bar doesn't serve underage 14 people. And that's the paradigm. It would seem to follow 15 from the law that it's the provider of the materials that has 16 to insure, -- 17 JUDGE BUCKWALTER: Right. 18 THE WITNESS: And the liquor provider of the bar 19 can't be sure that they're checking IDs at the door and -- 20 JUDGE BUCKWALTER: He can have a gateway though 21 which is the bouncer at the door who checks the ID or the 22 password of the -- 23 THE WITNESS: But would the liquor provider have to 24 have that bouncer, or would the bar's owner have to -- 25 JUDGE BUCKWALTER: Well, under the example I'm 159 1 giving and the way it worked back then, the liquor provider 2 had to have the bouncer. And isn't that what we're talking 3 about here under this law, that the Government is saying the 4 provider has to have the bouncer? 5 THE WITNESS: The liquor, the Jim Beam has to have 6 the bouncer, not the bar has to have the bouncer, and that's 7 the difference -- that's my extension of your scenario to 8 this law. 9 JUDGE BUCKWALTER: Okay. Now, extending my scenario 10 further, are you saying that that's very difficult to -- 11 THE WITNESS: It's very difficult for Jim Beam to 12 know that the bouncer is there and to know the bouncer is 13 following the rules set which will result in underage people 14 not being allowed into the bar. 15 JUDGE BUCKWALTER: Okay. I don't want to go any 16 further with this, because it takes up too much time and 17 might not be particularly helpful, but thank you. 18 JUDGE SLOVITER: I have one more basic question for 19 him. While you were willing to do some explaining, and if 20 we've done this twice, let me know, but I was trying to 21 understand the use of the password system rather than the 22 anonymous system. We haven't gone over that today, have we? 23 THE WITNESS: No, we haven't. 24 JUDGE SLOVITER: In different language -- which you 25 talked about in your declaration. 160 1 THE WITNESS: Yes. 2 JUDGE SLOVITER: And I think you say that use of the 3 password system rather than the anonymous system 4 automatically would give the user access to the entire 5 system. 6 THE WITNESS: I do say that, yes. 7 JUDGE SLOVITER: Yes. And if you would just quickly 8 explain that, if possible, and then tell us why couldn't the 9 access be restricted also? 10 THE WITNESS: What I was explaining there was the 11 existing software. Certainly software can be changed to do 12 anything that you want it to do, given sufficient money and 13 motivation. But the existing software for FTP which is what 14 I was specifically referring to, anonymous FTP when you log 15 in as anonymous, which is if you wanted to retrieve a file 16 from my system and I gave you the name of the file, you could 17 just go in using FTP, log in as anonymous, and then go to the 18 directory the file is in and retrieve it. 19 But when you do that, the FTP server, the demon, the 20 server itself automatically restricts you to a subset of the 21 information that's available on my machine. It's a 22 subportion of the directory tree. So you can only see that, 23 and you cannot change directory out of that. There's just -- 24 the software prevents you from doing that. It's called 25 rehoming. It gives you a new home that's very, very 161 1 restricted. 2 In the currently available software, the FTP demons, 3 that if you go and you log in as a regular user, which is 4 what you do when you're logging in with a user name and a 5 password, a legitimate one, my own user name and my own 6 password, for example, if I were to do that, then it gives me 7 access to the machine as if I had logged into the machine as 8 a terminal. It gives me the same view of the machine. And 9 that view of the machine is all of the files on the machine 10 with whatever protections those files have for every user. 11 So that if a file is publicly readable for all users, then it 12 would be publicly readable for the FTP who was coming in on a 13 log name and password basis. If it's not publicly readable, 14 then it wouldn't be. 15 What I was referring there was that it lays open for 16 potential abuse the entire structure of the server site. In 17 my case -- 18 JUDGE SLOVITER: Of the server. What was -- 19 THE WITNESS: The server computer, the server site. 20 JUDGE SLOVITER: And you concluded from that in 21 terms relevant to this case, because I'm not sure which side 22 that goes for, but what do you conclude from this? 23 THE WITNESS: There were two messages I was trying 24 to convey there. One was that it would be an administrative 25 burden for me to maintain a log name and password file for 162 1 all of the very many people, individual users, who would want 2 to come and look at and retrieve information from my site. 3 So it's just purely an administrative nightmare to do that. 4 And the other is that it would pose to me a security risk to 5 make all of these files open, because I know that in my 6 machine as in almost all machines I have not been perfect in 7 setting the machine up, and I may have made some errors, and 8 some files which should have been protected are not 9 protected, or there is bugs in some of the software. And 10 people could use the visibility they have into my machine to 11 circumvent the security on it. 12 JUDGE SLOVITER: And you're not saying that software 13 couldn't be created that would do that, would take care of 14 this problem, -- 15 THE WITNESS: Absolutely not saying that. 16 JUDGE SLOVITER: -- but it just hasn't been right 17 now. 18 THE WITNESS: It is not -- the current software does 19 not do this. Future software wouldn't change the 20 administrative burden tremendously, but -- 21 JUDGE SLOVITER: Well, unless future it may do that, 22 too. 23 THE WITNESS: The future is unseeable. 24 JUDGE SLOVITER: Okay, thank you. 25 Mr. Baron? 163 1 BY MR. BARON: 2 Q I have just a couple questions. The record may be clear 3 on this point, Mr. Bradner, but we were talking about the 4 trivialness or the ease by which a tag can be put in HTML 5 source code. And do I understand it from your testimony that 6 those individuals who know HTML source code who would be 7 designing Web pages, for that class of individuals it would 8 be an easy, straightforward trivial task to imbed a tag in a 9 header? 10 A Actually I was going further than that and saying that if 11 you gave me a sample of what it's supposed to look like, even 12 if I don't know HTML, it would still be trivial. 13 Q Okay. And this is a very important point that your 14 Honors have raised about conventions and standards for 15 looking at tags and headers. And so my question is that you 16 recall your testimony yesterday about Netscaping 17 approximately 80 percent of the browser market, correct? 18 A As I recall my testimony yesterday was that Netscape 19 claimed to be 80 percent of the market. 20 Q I stand corrected. If -- and we spent a lot of time 21 yesterday at the beginning of your testimony talking about 22 the IETF and the fact that the Internet is a standards-rich 23 environment, do you recall that? 24 A That's a standards development group rich environment. 25 Q Okay, all right. (Laughter.) 164 1 A Which is slightly different. 2 Q There are lots and lots of standards. 3 A Yes, some of them conflicting. 4 Q And draft standards, proposed standards, we covered all 5 that. 6 A Consortium standards, the end of the month club. 7 (Laughter.) 8 Q Now, if a Government agency or alternatively if in a 9 consortium of private parties got together and adopted a 10 convention or a standard for tagging in HTML code, that would 11 essentially operate, like the movie rating system, be an 12 adult tag, that is a technical matter, the browser market as 13 just is a matter of technical feasibility the browser market 14 represented by Netscape and Microsoft and others, could 15 certainly pick up that tag that would be adopted as a 16 standard or a convention, isn't that correct? 17 A Yes, and they could even program the browsers to accept 18 more than one standard for the same sort of information. 19 MR. BARON: I have no further questions. 20 JUDGE SLOVITER: Any further questions? 21 MR. MORRIS: No, your Honor. 22 JUDGE SLOVITER: Okay. 23 JUDGE DALZELL: But I want to follow up on that. 24 You said and Dr. Hoffman said that the Worldwide Web was not 25 created here, it came out of Czern (ph), right? 165 1 THE WITNESS: That's correct. 2 JUDGE DALZELL: And so what Mr. Baron just asked you 3 about hypothesizes that there is a plenary group that sets 4 standards and by setting standards, doesn't that then exclude 5 the possibility of new technologies such as the Worldwide Web 6 which arose spontaneously, not even in these shores? 7 THE WITNESS: That is a very insightful question. 8 (Laughter.) That happens to be one of the subjects of the 9 meeting I was at yesterday and couldn't be here on. 10 The tension between standards bodies is a very 11 serious issue. I made light of it just a second ago, but it 12 is a very serious issue and there are many places in the 13 globe where the development of standards and the control of 14 the standards development process is seen as a strategic 15 necessity on the part of some governments. And so the 16 defining of what standards to use, how to develop them and 17 what -- the level the mandating of those standards is seen as 18 strategic. 19 And it is absolutely true that a too-strong 20 environment saying all standards must come from standards 21 group number two has a serious impact on innovation. The Web 22 rose out of a hole. The whole concept of the Web rose out of 23 a need that we didn't know we had. We didn't know we had 24 this lack of ability to do easy browsing because we didn't 25 have the concept of easy browsing. This was something that 166 1 sprung out of innovations on some parts of some individuals. 2 It was not part of a standards effort. It was people doing 3 something. It caught on because people wanted the -- saw it 4 as useful. 5 There are other holes in the Net. We don't know 6 what they are. There are other needs that we don't know we 7 have. And certainly being too reliant on "we only do those 8 things which are standard" will stifle that innovation and it 9 would be very bad for us. We went through many years of 10 telecom where we did not have, let's say, rapid innovation 11 because of that kind of centralized standards development 12 constraint. 13 So in the context though of what Mr. Baron was 14 asking, if a consortium were to develop a tagging structure, 15 it wouldn't have to be the same consortium that would develop 16 future extensions on HTML. I met with somebody on Tuesday 17 where the IETF is going to actually have a document which is 18 the extensions on HTML and this is being put together with 19 the W3 consortium. It's a nice conglomerate effort. 20 But a group putting together a standard for labeling 21 within HTML or within URLs or within copies of any text that 22 happens to be around wouldn't necessarily have to cooperate 23 with any other standards body in doing so. It could just 24 create it. 25 JUDGE DALZELL: And indeed, isn't the whole point 167 1 that the very exponential growth and utility of the Internet 2 occurred precisely because governments kept their hands out 3 of this and didn't set standards that everybody had to 4 follow? 5 THE WITNESS: Well, it's actually even a little bit 6 more contorted than that because the governments tried to. 7 The U.S. Government and many other governments attempted to 8 mandate a particular kind of protocol to be used on worldwide 9 data networks, and this is the OSI protocol suite. The U.S. 10 Government mandated its use within the U.S. Government and 11 with purchasing material with U.S. funds. This was mandated 12 in many European countries and in Canada and many other 13 places around the world. 14 That particular suite of protocols has failed to 15 achieve market success. What achieved success was the very 16 chaos that the Internet is. The strength of the Internet is 17 that chaos. It's the ability to have the forum to innovate. 18 And certainly a strong standards environment fights hard 19 against innovation. 20 JUDGE DALZELL: Thank you. 21 JUDGE SLOVITER: Thank you. 22 I'm sure counsel would like to continue the 23 dialogue, but are you content to let it be at the moment? 24 MR. MORRIS: We are, your Honor. 25 MR. BARON: Yes, your Honor. 168 1 JUDGE SLOVITER: I guess you are. I'm not 2 (laughter)... 3 We'll close now to resume on the 1st of April -- 4 JUDGE DALZELL: On the 1st at 9:30. 5 JUDGE SLOVITER: Although counsel is I gather going 6 to meet with Judge Dalzell. Do they know that -- 7 JUDGE DALZELL: Could we do that at 3:00 o'clock in 8 the robing room, if that's convenient? 9 JUDGE SLOVITER: Okay? All right. Thank you all 10 very much, and have a good week until then. 11 THE CLERK: All rise. 12 (Proceedings concluded at 2:40 o'clock p.m.) 13 169 1 I N D E X 2 PLAINTIFFS' WITNESSES DIRECT CROSS REDIRECT RECROSS 3 Donna L. Hoffman 4 By Mr. Hansen 60, 92 5 By Mr. Baron (Voir Dire) 5 6 By Mr. Baron 10 91 7 Robert B. Croneberger 8 By Ms. Russotto 96 9 By Ms. Kappler 109 10 Scott Bradner 11 By Mr. Morris 123 12 By Mr. Baron 140 13 - - -